OPINION OF THE COURT
AMBRO, Circuit Judge, announced the judgments of the Court and delivered the opinion for a unanimous Court with respect to Parts I and II, an opinion with respect to Parts III.A. III.B, III.C.1, III.C.2, and III.C.3.a, in which FUENTES, SMITH, GREENAWAY, Jr., VANASKIE, KRAUSE, and ROTH, Circuit Judges, joined, and an opinion with respect to Parts III.C.3.b, III.D. and IV, in which SMITH and GREENAWAY, Jr., Circuit Judges, joined.
TABLE OF CONTENTS
I. Background ... 340
II. The Challengers' Statutory Argument ... 341
III. The Challengers' Constitutional Argument... 343
A. The Second Amendment ... 343
B. The Framework for As-Applied Second Amendment Challenges ... 345
C. Step One of the Marzzarella Framework ... 347
1. The Challengers Presumptively Lack Second Amendment Rights ... 347
2. The Traditional Justification for Denying Felons the Right to Arms ... 348
3. The Challengers' Circumstances ... 349
a. Distinguishing the Historically Barred Class ... 349
b. Application to the Challengers ... 350
D. Step Two of the Marzzarella Framework ... 356
IV. Conclusion ... 356
Federal law generally prohibits the possession of firearms by any person convicted in any court of a "crime punishable by imprisonment for a term exceeding one year." 18 U.S.C. § 922(g)(1). Excluded from the prohibition is "any State offense classified by the laws of the State as a misdemeanor and punishable by a term of imprisonment of two years or less." Id. § 921(a)(20)(B). And there is also an exemption for "[a]ny conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored," where the grant of relief does not expressly preserve the firearms bar. Id. § 921(a)(20).
In United States v. Marzzarella we adopted a framework for deciding facial and as-applied Second Amendment challenges. 614 F.3d 85 (3d Cir. 2010). Then in United States v. Barton we held that the prohibition of § 922(g)(1) does not violate the Second Amendment on its face, but we stated that it remains subject to as-applied constitutional challenges. 633 F.3d 168 (3d Cir. 2011).
Before us are two such challenges. In deciding them, we determine how a criminal law offender may rebut the presumption that he lacks Second Amendment rights. In particular, a majority of the Court concludes that Marzzarella, whose two-step test we reaffirm today, drives the analysis.
In 1996 Daniel Binderup began a consensual sexual relationship with a 17-year-old female employee at his bakery. Binderup was 41 years old at the time and was aware that his employee was a minor, though she was over the legal age of consent in Pennsylvania (16). Two years later, Binderup pled guilty in a Pennsylvania state court to corrupting a minor, a misdemeanor subject to possible imprisonment for up to five years. 18 Pa. Cons. Stat. §§ 6301(a)(1)(I), 1104. Despite this, Binderup's sentence was the colloquial slap on the wrist: probation (three years) and a $300 fine plus court costs and restitution. His criminal record shows no subsequent offenses.
In 1990 police stopped Julio Suarez on suspicion of driving while intoxicated. During the stop, police noticed that Suarez was carrying a .357 Magnum handgun, as well as two "speed loaders" (devices that allow one to load all chambers of a revolver mechanically rather than inserting bullets one-by-one). He had no permit for the gun. He later pled guilty in a Maryland state court to unlawfully carrying a handgun without a license, a misdemeanor subject to possible imprisonment for "not less than 30 days and not [more than] three years or a fine of not less than $250 and not [more than] $2,500 or both." Md. Code Ann. art. 27, § 36B(b) (1990) (now codified at Md. Code Ann. Crim. Law § 4-203). Suarez nonetheless received a suspended sentence of 180 days' imprisonment and a $500 fine, followed by a year of probation that he completed successfully. Eight years later, he was convicted again in a Maryland state court, this time for the state-law misdemeanor of driving under the influence of alcohol. Only the first of the convictions was subject to § 922(g)(1). Suarez now lives in Pennsylvania and since 1998 has led a life free of run-ins with the law. He holds a "Secret" federal government security clearance in connection with his job as a consultant for a government contractor.
Pennsylvania law disqualified Binderup and Suarez (collectively, the "Challengers") from possessing firearms due to their convictions, but in 2009 they successfully petitioned the Pennsylvania courts to remove that prohibition. Federal law, however, continues to bar them from possessing firearms because their convictions have not been expunged or set aside, they have not been pardoned, and their civil rights have not been restored. See 18 U.S.C. § 921(a)(20); Logan v. United States, 552 U.S. 23, 37, 128 S.Ct. 475, 169 L.Ed.2d 432 (2007). Nor has the Attorney General granted them relief under 18 U.S.C. § 925(c), which allows her to remove the prohibition on a case-by-case basis "if it is established to [her] satisfaction" that a barred individual "will not be likely to act in a manner dangerous to public safety and that the granting of the relief would not be contrary to the public interest."
Binderup and Suarez want to obtain guns to defend themselves and their families within their homes, but they have not attempted to do so for fear of violating § 922(g)(1). As a result, each filed a complaint in federal District Court (Binderup in the Eastern District of Pennsylvania, Suarez in the Middle District of Pennsylvania) seeking declaratory and injunctive relief. They claim as a matter of statutory construction that § 922(g)(1) does not apply to their convictions and, if it does, the statute is unconstitutional as applied. The Government opposed the lawsuits, and the parties in both cases filed cross-motions for summary judgment.
The District Courts rejected the Challengers' statutory argument but held that § 922(g)(1) is unconstitutional as applied. The United States District Court for the Eastern District of Pennsylvania ruled
The United States District Court for the Middle District of Pennsylvania applied "a two[-]prong test for Second Amendment challenges" derived from our case law. Suarez v. Holder, ___ F.Supp.3d ___, ___-___, No. 1:14-CV-968, 2015 WL 685889, at *6-7 (M.D. Pa. Feb. 18, 2015). It found first that Suarez has Second Amendment rights notwithstanding his 1990 conviction because he demonstrated that "he is no more dangerous than a typical law-abiding citizen." Id. at ___, 2015 WL 685889 at *10. Then the Court applied means-ends scrutiny (in that case, strict scrutiny) and determined that § 922(g)(1) is unconstitutional as applied to him due to the severity of the burden it imposes. Id. at ___ n.9, 2015 WL 685889 at *7 n.9.
The Government appealed the summary judgments, and the Challengers' cross-appealed the District Courts' interpretations of the dispossession statute. The District Courts had jurisdiction under 28 U.S.C. §§ 1331, 1343, 1346, 2201, and 2202. We have appellate jurisdiction under 28 U.S.C. § 1292(a)(1).
Separate panels heard the appeals, and the Court sua sponte consolidated them for rehearing en banc. Our review is plenary. InterVest, Inc. v. Bloomberg, L.P., 340 F.3d 144, 158 (3d Cir. 2003).
II. The Challengers' Statutory Argument
Section 922(g)(1), as noted, does not cover state misdemeanors "punishable by a term of imprisonment of two years or less." 18 U.S.C. § 921(a)(20)(B). The Challengers argue that the exception includes any state misdemeanor that, like theirs, could have been punished by less than two years' imprisonment.
We disagree. The exception in § 921(a)(20)(B) covers any crime that cannot be punished by more than two years' imprisonment. It does not cover any crime that can be punished by more than two years in prison. In other words, § 921(a)(20)(B)'s use of "punishable by" means "subject to a maximum penalty of." Although we have never explicitly defined it this way, we have at least twice relied on that understanding in interpreting the relationship between § 921(a)(20)(B) and § 922(g)(1). See United States v. Essig, 10 F.3d 968, 969-71 (3d Cir. 1993) (relying on an understanding of "punishable" that refers to whether the maximum potential sentence for a state misdemeanor exceeds two years, not whether a lesser sentence might be imposed); United States v. Schoolcraft, 879 F.2d 64, 69-70 (3d Cir.
Even if we were writing on a blank slate, we would reject the Challengers' interpretation. When considering a crime's potential punishment, we ordinarily refer only to the maximum punishment a court may impose. As the District Court in Suarez perceptively observed, when a crime has maximum and minimum possible punishments, we describe it as being "punishable" by that specific range; and when a crime references only a maximum punishment, "we ordinarily identify only the upper boundary" of that range, as "[a]ll lower possible terms of imprisonment are included by implication." ___ F.Supp.3d at ___ 2015 WL 685889, at *3. That is why we would not describe a crime carrying a specified term of imprisonment of up to three years as one "punishable by a term of imprisonment of two years or less." By contrast, a misdemeanor carrying a ceiling of 18 months' imprisonment would properly be described in the criminal law context as a crime "punishable by a term of imprisonment of two years or less" and on its face would not trigger the bar on gun possession. Accordingly, "subject to a maximum possible penalty of is the best reading of the phrase "punishable by" as used in § 921(a)(20)(B).
Our interpretation also makes sense in light of similar language in the United States Sentencing Guidelines. They provide three distinct grades of probation and supervised release violations — Grades A, B, and C — with Grade A violations treated most severely and Grade C least severely. See U.S.S.G. §§ 7B1.1(a), 7B1.4(a). The Challengers' interpretation of the phrase "punishable by" would erode those distinctions. Since Grade C applies only to offenses "punishable by a term of imprisonment of one year or less," U.S.S.G. § 7B1.1(a)(3), the Challengers' interpretation would render offenses punishable by more than a year (Grade B), as well as even more serious offenses described as Grade A, eligible for Grade C treatment. This would be an absurd result.
In a last-ditch effort, the Challengers argue that § 921(a)(20)(B)'s use of "punishable" merits application of the rule of lenity (that ambiguous criminal laws be construed in favor of defendants) or the constitutional avoidance doctrine (that ambiguous statutory language be construed to avoid serious constitutional doubts). Both of these principles require ambiguity in the statute. See Voisine v. United States, 579 U.S. ___, 136 S.Ct. 2272, 2282 n.6, 195 L.Ed.2d 736 (2016). As there isn't any here, they give no plausible defense.
In sum, the Challengers' argument that their convictions fall within § 921(a)(20)(B)'s exception to § 922(g)(1) has no traction. Their misdemeanor convictions were punishable by more than two years' imprisonment. Hence they cannot seek refuge in § 921(a)(20)(B) and are subject to the bar of § 922(g)(1).
III. The Challengers' Constitutional Argument
A. The Second Amendment
The Challengers contend that, notwithstanding how we rule on their statutory argument, § 922(g)(1) is unconstitutional as applied to them. The Second Amendment states: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." U.S. Const. amend. II. In District of Columbia v. Heller, the Supreme Court invalidated a law that "totally ban[ned] handgun possession in the home" and "require[d] that any lawful firearm in the home be disassembled or bound by a trigger lock at all times, rendering it inoperable." 554 U.S. 570, 628, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008). In so doing, the Court held the Second Amendment protects an individual's right to possess a firearm "unconnected with militia service." Id. at 582, 128 S.Ct. 2783. At the "core" of the Second Amendment is the right of "law-abiding, responsible citizens to use arms in defense of hearth and home." Id. at 634-35, 128 S.Ct. 2783; Barton, 633 F.3d at 170-71; Marzzarella, 614 F.3d at 89. Two years after Heller, in McDonald v. City of Chicago, the Court held that the Fourteenth Amendment "incorporates the Second Amendment right recognized in Heller" because the right is "fundamental" to "our system of ordered liberty." 561 U.S. 742, 778, 791, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010).
Although the Second Amendment guarantees an individual right, it is "not unlimited." Heller, 554 U.S. at 626, 128 S.Ct. 2783; see United States v. Huitron-Guizar, 678 F.3d 1164, 1166 (10th Cir. 2012); Eugene Volokh, Implementing the Right to Keep and Bear Arms for Self-Defense: An Analytical Framework and a Research Agenda, 56 UCLA L. Rev. 1443, 1443 (2009).
As to cases involving burdens on Second Amendment rights, Heller did not announce which level of scrutiny applies but cautioned that challenges based on those rights are not beaten back by the Government supplying a rational basis for limiting them. 554 U.S. at 628 n.27, 128 S.Ct. 2783 ("If all that was required to overcome the right to keep and bear arms was a rational basis, the Second Amendment would be redundant with the separate constitutional prohibitions on irrational laws, and would have no effect.").
Some judges — including Judge Hardiman and those colleagues who join his opinion concurring in the judgments — and commentators have interpreted Heller to mean that any law barring persons with Second Amendment rights from possessing lawful firearms in the home even for self-defense is per se unconstitutional; that is, no scrutiny is needed. See Hardiman Op. Typescript at 13-19; Heller v. District of Columbia, 670 F.3d 1244, 1272-73 (D.C. Cir. 2011) (Kavanaugh, J., dissenting); Volokh, 56 UCLA L. Rev. at 1462; Joseph Blocher, Categoricalism and Balancing in First and Second Amendment Analysis, 84 N.Y.U. L. Rev. 375, 377, 380 (2009); see also United States v. McCane, 573 F.3d 1037, 1047-50 (10th Cir. 2009) (Tymkovich, J., concurring). But neither the Supreme Court nor any court of appeals has held that laws burdening Second Amendment rights evade constitutional scrutiny. Rather, when faced with an as-applied Second Amendment challenge, they agree that some form of heightened scrutiny is appropriate after it has been determined that the law in question burdens protected conduct. See, e.g., Marzzarella, 614 F.3d at 97-101 (applying intermediate scrutiny and, in the alternative, strict scrutiny to § 922(k)'s prohibition on possession of any firearm with a destroyed serial number); United States v. Williams, 616 F.3d 685, 692-93 (7th Cir. 2010) (applying intermediate scrutiny to § 922(g)(1)); United States v. Chovan, 735 F.3d 1127, 1141-42 (9th Cir. 2013) (same with respect to § 922(g)(9)'s disarmament of a domestic-violence misdemeanant); United States v. Chester, 628 F.3d 673, 682-83 (4th Cir. 2010) (same); United States v. Reese, 627 F.3d 792, 802-05 (10th Cir. 2010) (same with respect to § 922(g)(8)'s dispossession of certain persons subject to a domestic restraining order); Tyler v. Hillsdale Cty. Sheriff's Dep't, 775 F.3d 308, 326-29 (6th Cir. 2014) (applying strict scrutiny to § 922(g)(4)'s dispossession of any person "who has been committed to a mental institution"), reh'g en banc granted, opinion vacated (Apr. 21, 2015).
That individuals with Second Amendment rights may nonetheless be denied possession of a firearm is hardly illogical. It is no different than saying that the Government may prevent an individual with First Amendment rights from engaging in First Amendment conduct — even conduct at the core of the First Amendment — if it makes the showing necessary to surmount heightened scrutiny. See, e.g., FEC v. Wis. Right to Life, 551 U.S. 449, 464-65, 127 S.Ct. 2652, 168 L.Ed.2d 329 (2007) (applying strict scrutiny to a statute prohibiting political speech at the core of the First Amendment); United Pub. Workers of Am. v. Mitchell, 330 U.S. 75, 102-03, 67 S.Ct. 556, 91 L.Ed. 754 (1947) (upholding the constitutionality of prohibitions on certain political activities by federal employees notwithstanding the First Amendment). Thus burdens on Second Amendment rights are subject to scrutiny in much the way that burdens on First Amendment rights are. Drake v. Filko, 724 F.3d 426, 434-36 (3d Cir. 2013); see NRA
Even if a law that "completely eviscerates the Second Amendment right" would be per se unconstitutional under Heller, Hardiman Op. Typescript at 18, § 922(g)(1) is no such law. Notwithstanding that provision (and as already noted), persons convicted of disqualifying offenses may under some circumstances possess handguns if (1) their convictions are expunged or set aside, (2) they receive pardons, or (3) they have their civil rights restored. 18 U.S.C. § 921(a)(20). And were Congress to fund 18 U.S.C. § 925(c), they could ask the Attorney General to lift the ban in their particular cases. Though some of these statutory avenues for relief are closed to Binderup and Suarez, see infra Part III.D. the remaining opportunities for them to overcome the ban contrast starkly with the District of Columbia law in Heller that made it a crime to carry an unregistered firearm and prohibited entirely the registration of handguns by individuals; there was nothing Mr. Heller could do to possess a handgun lawfully while outside his job as a District of Columbia special police officer guarding the Federal Judicial Center (in other words, he guarded judges). See 554 U.S. at 574, 128 S.Ct. 2783 (citing D.C. Code §§ 7-2501.01(12), 7-2502.01(a), 7-2502.02(a)(4) (2001)); Parker v. District of Columbia, 478 F.3d 370, 373-74 (D.C. Cir. 2007); cf. United States v. Skoien, 614 F.3d 638, 645 (7th Cir. 2010) (en banc) (noting that disarmament under § 922(g)(9) is ordinarily not "perpetual" because of exceptions similar to those under § 922(g)(1)); Chovan, 735 F.3d at 1138 (same).
To say that § 922(g)(1) is per se unconstitutional as applied to anyone with Second Amendment rights notwithstanding the statute's escape hatches is a bridge too far. For starters, that would condemn without exception all laws and regulations containing preconditions for the possession of firearms by individuals with Second Amendment rights. By that reasoning, any law prohibiting an individual from possessing a handgun unless he passes a physical examination (to show he is capable of handling a firearm safely) or completes firearm training (to show he knows how to handle a firearm safely) would similarly be per se unconstitutional, even if it is the least restrictive means of achieving a compelling government interest. There is no precedent for crippling the Government's ability to regulate gun ownership in this manner. And to guarantee absolutely the ability to keep and bear arms even in cases where disarmament would survive heightened scrutiny would be a radical departure from our post-Heller jurisprudence and risk undermining many commonplace constitutional gun regulations.
B. The Framework for As-Applied Second Amendment Challenges
Unlike a facial challenge, an as-applied challenge "does not contend that a law is unconstitutional as written but that its application to a particular person under particular circumstances deprived that person of a constitutional right." United States v. Mitchell, 652 F.3d 387, 405 (3d Cir. 2011) (quoting United States v. Marcavage, 609 F.3d 264, 273 (3d Cir. 2010)); see Ayotte v. Planned Parenthood of N. New England,
Two of our precedents — Marzzarella and Barton — have guided how we approach as-applied Second Amendment challenges. The former involved an as-applied challenge to 18 U.S.C. § 922(k), which bars the possession of any firearm with an obliterated serial number. It derived from Heller a "two-pronged approach to Second Amendment challenges" to firearm restrictions. 614 F.3d at 89. We first consider "whether the challenged law imposes a burden on conduct falling within the scope of the Second Amendment's guarantee." Id. If not, the challenged law must stand. But if the law burdens protected conduct, the proper course is to "evaluate the law under some form of means-end scrutiny," id. that form in Marzzarella being intermediate scrutiny, id. at 97. "If the law passes muster under [the] standard [applied], it is constitutional. If it fails, it is invalid." Id. at 89. As to § 922(k), we held that the law withstood intermediate scrutiny "even if it burden[ed] protected conduct" by fitting reasonably with the important "law enforcement interest in enabling the tracing of weapons via their serial numbers." Id. at 95, 98. (We also noted in a dictum that the law would survive strict scrutiny, were that the test, because the provision serves a compelling interest through the least-restrictive means. Id. at 99-101.)
Nearly every court of appeals has cited Marzzarella favorably. See, e.g., N.Y. State Rifle & Pistol Ass'n, Inc. v. Cuomo, 804 F.3d 242, 254 n.49 (2d Cir. 2015); Chovan, 735 F.3d at 1136-37; Nat'l Rifle Ass'n of Am., Inc. v. Bureau of Alcohol, Tobacco, Firearms, & Explosives, 700 F.3d 185, 194-96 (5th Cir. 2012); GeorgiaCarry.org, Inc. v. Georgia, 687 F.3d 1244, 1260 n.34 (11th Cir. 2012); United States v. Greeno, 679 F.3d 510, 518 (6th Cir. 2012); Heller, 670 F.3d at 1252-53; Ezell v. City of Chicago, 651 F.3d 684, 701-04 (7th Cir. 2011); Chester, 628 F.3d at 680-83; Reese, 627 F.3d at 800-05. Indeed, it has escaped disparagement by any circuit court.
A year after Marzzarella we decided Barton, which involved a felon convicted under the provision now before us — § 922(g)(1). Barton raised facial and as-applied Second Amendment challenges to the firearm ban. After dispensing with his facial challenge and confirming the availability of as-applied challenges under the Second Amendment, we ruled that "the common law right to keep and bear arms did not extend to those who were likely to commit violent offenses." 633 F.3d at 173. Because Barton's prior convictions for possession of cocaine with intent to distribute and for receipt of a stolen firearm (as well as his illegal post-conviction sale of a firearm with an obliterated serial number) were "closely related to violent crime," we concluded that he lacked Second Amendment rights. Id. at 174. Put another way, Barton did not present "facts about himself and his background that distinguish[ed] his circumstances from those of persons historically barred from Second Amendment protections," id. so he was "disqualified from the exercise of Second Amendment rights," id. at 174 (quoting Heller, 554 U.S. at 635, 128 S.Ct. 2783), and his as-applied challenge could not succeed.
Read together, Marzzarella and Barton lay out a framework for deciding as-applied challenges to gun regulations. At step one of the Marzzarella decision
No doubt a challenger cannot prevail merely on his say-so. Courts must find the facts to determine whether he has adequately distinguished his circumstances from those of persons historically excluded from Second Amendment protections. Not only is the burden on the challenger to rebut the presumptive lawfulness of the exclusion at Marzzarella's step one, but the challenger's showing must also be strong. That's no small task. And in cases where a statute by its terms only burdens matters (e.g., individuals, conduct, or weapons) outside the scope of the right to arms, it is an impossible one. But if the challenger succeeds at step one, the burden shifts to the Government to demonstrate that the regulation satisfies some form of heightened scrutiny, discussed further below, at step two of the Marzzarella analysis.
The Challengers, the District Court in Binderup, and some of our colleagues claim that Marzzarella and Barton set standards for different types of as-applied Second Amendment challenges and that only Barton controls challenges to § 922(g)(1); Marzzarella has no role in the analysis. Our view is that, at least in pertinent part, each complements the other for an as-applied Second Amendment challenge to a presumptively lawful regulatory measure like § 922(g)(1). Barton identifies the two hurdles that an individual presumed to lack Second Amendment rights must overcome to rebut the presumption at step one of the Marzzarella framework.
C. Step One of the Marzzarella Framework
1. The Challengers Presumptively Lack Second Amendment Rights
Heller teaches that "longstanding prohibitions on the possession of firearms by felons" are "presumptively lawful." 554 U.S. at 626 & 627 n.26, 128 S.Ct. 2783. Traditionally, "felons" are people who have been convicted of any crime "that is punishable by death or imprisonment for more than one year." 1 Wayne R. LaFave, Substantive Criminal Law § 1.6 (2d ed. 2015); cf. Carachuri-Rosendo v. Holder, 560 U.S. 563, 567, 130 S.Ct. 2577, 177 L.Ed.2d 68 (2010) (quoting 18 U.S.C. § 3559(a)).
Section 922(g)(1) bars the possession of firearms by anyone convicted of "a crime punishable by imprisonment for a term exceeding one year." This means that its prohibition extends to anyone convicted of a crime meeting the traditional definition of a felony, though Congress excluded anyone convicted of a "State offense classified by the laws of the State as a misdemeanor" unless it is punishable by more than
Binderup and Suarez were each convicted of a misdemeanor subject to § 922(g)(1): Binderup's was punishable by up to five years' imprisonment; Suarez's by up to three years in prison. The Pennsylvania and Maryland legislatures classify their respective offenses as misdemeanors. However, based on their maximum possible punishments, they meet the traditional definition of a felony, and Congress treats them as felonies for purposes of § 922(g)(1). As a result, Binderup and Suarez are subject to a firearm ban that is, per Heller, "presumptively lawful."
2. The Traditional Justification for Denying Felons the Right to Arms
Turning to the first hurdle of step one, we look to the historical justification for stripping felons, including those convicted of offenses meeting the traditional definition of a felony, of their Second Amendment rights. "[M]ost scholars of the Second Amendment agree that the right to bear arms was tied to the concept of a virtuous citizenry and that, accordingly, the government could disarm `unvirtuous citizens.'" United States v. Yancey, 621 F.3d 681, 684-85 (7th Cir. 2010); see, e.g., Saul Cornell & Nathan DeDino, A Well Regulated Right: The Early American Origins of Gun Control, 73 Fordham L. Rev. 487, 491-92 (2004); Saul Cornell, "Don't Know Much about History": The Current Crisis in Second Amendment Scholarship, 29 N. Ky. L Rev. 657, 679 (2002); David Yassky, The Second Amendment: Structure, History, and Constitutional Change, 99 Mich. L. Rev. 588, 626-27 (2000); Glenn Harlan Reynolds, A Critical Guide to the Second Amendment, 62 Tenn. L. Rev. 461, 480 (1995); Don B. Kates, Jr., The Second Amendment: A Dialogue, Law & Contemp. Probs., Winter 1986, at 143, 146; Don B. Kates, Jr., Handgun Prohibition and the Original Meaning of the Second Amendment, 82 Mich. L. Rev. 204, 266 (1983). Several of our sister circuits endorse the "virtuous citizen" justification for excluding felons and felon-equivalents from the Second Amendment's ambit. See, e.g., United States v. Carpio-Leon, 701 F.3d 974, 979-80 (4th Cir. 2012) ("[F]elons were excluded from the right to arms because they were deemed unvirtuous." (internal quotation marks omitted)); Yancey, 621 F.3d at 684-85; United States v. Vongxay, 594 F.3d 1111, 1118 (9th Cir. 2010) ("[T]he right to bear arms does not preclude laws disarming ... unvirtuous citizens (i.e., criminals)." (quoting Kates, Jr., 49 Law & Contemp Probs. at 146)); United States v. Rene E., 583 F.3d 8, 15 (1st Cir. 2009) ("In the parlance of the republican politics of the time, these limitations were sometimes expressed as efforts to disarm the `unvirtuous.'").
People who have committed or are likely to commit "violent offenses" — crimes "in which violence (actual or attempted) is an element of the offense," Skoien, 614 F.3d at 642; see Voisine, 136 S.Ct. at 2280 — undoubtedly qualify as "unvirtuous citizens" who lack Second Amendment rights. Barton, 633 F.3d at 173-74; see United States v. Bena, 664 F.3d 1180, 1184 (8th Cir. 2011) (recognizing "a common-law tradition that the right to bear arms is limited to peaceable or virtuous citizens"); C. Kevin Marshall, Why Can't Martha Stewart Have A Gun?, 32 Harv. J.L. & Pub. Pol'y 695, 727-28 (2009). But Heller recognized "longstanding prohibitions on the possession of firearms by felons," not just violent felons. 554 U.S. at 626, 128 S.Ct. 2783. The category of "unvirtuous citizens" is thus broader than violent criminals; it covers any person who has committed a serious criminal offense, violent or nonviolent. See Skoien, 614 F.3d at 640-41; United States v. Everist, 368 F.3d 517, 519
The view that anyone who commits a serious crime loses the right to keep and bear arms dates back to our founding era. "Heller identified ... as a `highly influential' `precursor' to the Second Amendment the Address and Reasons of Dissent of the Minority of the Convention of the State of Pennsylvania to Their Constituents." Skoien, 614 F.3d at 640 (quoting Heller, 554 U.S. at 604, 128 S.Ct. 2783). That report "asserted that citizens have a personal right to bear arms `unless for crimes committed, or real danger of public injury.'" Id. (emphasis added) (quoting 2 Bernard Schwartz, The Bill of Rights: A Documentary History 662, 665 (1971)). "[C]rimes committed" — violent or not — were thus an independent ground for exclusion from the right to keep and bear arms. And there is reason to believe that felon disarmament has roots that are even more ancient. See Kates, Jr., 82 Mich. L. Rev. at 266 ("Felons simply did not fall within the benefits of the common law right to possess arms.").
The takeaway: persons who have committed serious crimes forfeit the right to possess firearms much the way they "forfeit other civil liberties, including fundamental constitutional rights." Barton, 633 F.3d at 175.
3. The Challengers' Circumstances
a. Distinguishing the Historically Barred Class
Having identified the traditional justification for denying some criminal offenders the right to arms — that they are "unvirtuous" because they committed serious crimes — we turn to how other criminal offenders may distinguish their circumstances from those of people who historically lacked the right to keep and bear arms. Barton suggests two ways to satisfy this second hurdle of step one: the first is that a challenger may show that he never lost his Second Amendment rights because he was not convicted of a serious crime; the second is that a challenger who once lost his Second Amendment rights by committing a serious crime may regain them if his "crime of conviction is decades-old" and a court finds that he "poses no continuing threat to society." 633 F.3d at 174.
We agree with Barton only insofar as it stands for the unremarkable proposition that a person who did not commit a serious crime retains his Second Amendment rights. Setting aside what makes a crime "serious" in the Second Amendment context and whether § 922(g)(1) covers any non-serious crimes — issues we address in Part III.C.3.b and on which there is disagreement, see Fuentes Op. Typescript at 19-20 — being convicted of a non-serious crime does not demonstrate a lack of "virtue" that disqualifies an offender from exercising those rights.
But our agreement with Barton ends there. We reject its claim that the passage of time or evidence of rehabilitation will restore the Second Amendment rights of people who committed serious crimes. That view stems from Barton's misplaced focus at Marzzarella's step one on the probability of violent recidivism and is inconsistent with the true justification
There is no historical support for the view that the passage of time or evidence of rehabilitation can restore Second Amendment rights that were forfeited. To the extent Congress affords such a remedy in 18 U.S.C. § 921(a)(20) or 18 U.S.C. § 925(c), that is a matter of legislative grace; the Second Amendment does not require that those who commit serious crimes be given an opportunity to regain their right to keep and bear arms in that fashion. Indeed, the Supreme Court and our Court have recognized in the Second Amendment context that the Judicial Branch is not "institutionally equipped" to conduct "a neutral, wide-ranging investigation" into post-conviction assertions of rehabilitation or to predict whether particular offenders are likely to commit violent crimes in the future. United States v. Bean, 537 U.S. 71, 77, 123 S.Ct. 584, 154 L.Ed.2d 483 (2002); see Pontarelli v. U.S. Dep't of the Treasury, 285 F.3d 216, 230-31 (3d Cir. 2002) (en banc); cf. S. Rep. 102-353, at 19 (1992) (doubting that even the Executive Branch could feasibly grant individualized exceptions to § 922(g)(1) based on an offender's supposed rehabilitation because doing so is "a very difficult and subjective task" that "could have devastating consequences for innocent citizens if the wrong decision is made").
In short, only the seriousness of the purportedly disqualifying offense determines the constitutional sweep of statutes like § 922(g)(1) at step one. To the extent Barton holds that people convicted of serious crimes may regain their lost Second Amendment rights after not posing a threat to society for a period of time, it is overruled.
b. Application to the Challengers
We now consider whether the Challengers have shown that their crimes are not serious. As a preliminary matter, we note that Judge Fuentes, those colleagues joining his opinion dissenting from the judgment, and the Government deny the possibility of successful as-applied Second Amendment challenges to § 922(g)(1). See, e.g., Gov't Binderup Br. at 14; Gov't Suarez Br. at 15; Fuentes Op. Typescript at 18-40. In their view, § 922(g)(1), at least in its current form, is constitutional in all its applications because it does not burden the Second Amendment rights of felons or felon-equivalents who, because of their convictions, lack Second Amendment rights. Put another way, they believe that all crimes subject to § 922(g)(1) are disqualifying because their maximum possible punishments are conclusive proof they are serious.
But that view puts the rabbit in the hat by concluding that all felons and misdemeanants with potential punishments past a certain threshold lack the right to keep and bear arms when, despite their maximum possible punishment, some offenses may be "so tame and technical as to be insufficient to justify the ban." United States v. Torres-Rosario, 658 F.3d 110, 113 (1st Cir. 2011). Heller confirms such a showing is possible, as it describes prohibitions on the possession of firearms by felons as only "presumptively lawful." 554 U.S. at 626-27 & n.26, 128 S.Ct. 2783. Unless flagged as irrebutable, presumptions are rebuttable. See Barton, 633 F.3d at 173; Williams, 616 F.3d at 692. Indeed, under the approach of Judge Fuentes and those colleagues who join his opinion dissenting from the judgments, the Government could make an end-run around the
At the same time, there are no fixed criteria for determining whether crimes are serious enough to destroy Second Amendment rights. Unlike the "historically unprotected categories of speech" that are First Amendment exceptions "long familiar to the bar," United States v. Stevens, 559 U.S. 460, 468, 470, 130 S.Ct. 1577, 176 L.Ed.2d 435 (2010), the category of serious crimes changes over time as legislative judgments regarding virtue evolve. For example, though only a few exceedingly serious crimes were "felonies" at early common law, by the time of our country's founding "many new felonies were added by English statute." 1 Wharton's Criminal Law § 17 (15th ed. 2015); see, e.g., 4 William Blackstone, Commentaries *18 ("[N]o less than a hundred and sixty [actions] have been declared by act of parliament to be felonies without benefit of clergy; or, in other words, to be worthy of instant death."); Francis Bacon, Preparation for the Union of Laws of England and Scotland, in 2 The Works of Francis Bacon, Lord Chancellor of England 163-64 (1841) (listing dozens of felonies, including "[w]here a man stealeth certain kinds of hawks" or "invocates wicked spirits"). The upshot is that "exclusions need not mirror limits that were on the books in 1791" to comport with the Second Amendment. Skoien, 614 F.3d at 641. Rather, we will presume the judgment of the legislature is correct and treat any crime subject to § 922(g)(1) as disqualifying unless there is a strong reason to do otherwise.
Here, upon close examination of the Challengers' apparently disqualifying convictions, we conclude that their offenses were not serious enough to strip them of their Second Amendment rights. For starters, though the Challengers' crimes meet the generic definition of a felony and Congress's definition of a felony for purposes of § 922(g)(1), the Pennsylvania and Maryland legislatures enacted them as misdemeanors. Misdemeanors are, and traditionally have been, considered less serious than felonies. See Baldwin v. New York, 399 U.S. 66, 70, 90 S.Ct. 1886, 26 L.Ed.2d 437 (1970); misdemeanor, Black's Law Dictionary (10th ed. 2014); 1 LaFave, Substantive Criminal Law § 1.6. Congress tried to ensure that only serious crimes would trigger disarmament under § 922(g)(1) by exempting from the ban any state-law misdemeanant whose crime was punishable by less than two years' imprisonment. 18 U.S.C. § 921(a)(20)(B). But we believe that accommodation still paints with too broad a brush, for a state legislature's classification of an offense as a misdemeanor is a powerful expression of its belief that the offense is not serious enough to be disqualifying.
This is not to say that state misdemeanors cannot be serious. No doubt "some misdemeanors are ... `serious' offenses," Baldwin, 399 U.S. at 70, 90 S.Ct. 1886, and "numerous misdemeanors involve conduct more dangerous than many felonies," Tennessee v. Garner, 471 U.S. 1, 14, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985). See Johnson v.
Other considerations, however, confirm our belief that the Challengers' crimes were not serious. As explained above, violent criminal conduct — meaning a crime "in which violence (actual or attempted) is an element of the offense," Skoien, 614 F.3d at 642; see Voisine, 136 S.Ct. at 2280 — is disqualifying. See Part III.C.2. But neither Challenger's offense had the use or attempted use of force as an element.
Also important is that each Challenger received a minor sentence by any measure: Binderup was sentenced to three years' probation (a condition of which was to avoid contact with his employee) and a $300 fine plus court costs and restitution, while Suarez received a suspended sentence of 180 days' imprisonment and a $500 fine. That is because severe punishments are typically reserved for serious crimes. Additionally, punishments are selected by judges who have firsthand knowledge of the facts and circumstances of the cases and who likely have the benefit of pre-sentence reports prepared by trained professionals. With not a single day of jail time, the punishments here reflect the sentencing judges' assessment of how minor the violations were.
Finally, there is no cross-jurisdictional consensus regarding the seriousness of the Challengers' crimes. Some states treat consensual sexual relationships between 41 and 17 year olds as serious crimes, see Gov't Binderup Br. at 17-19 & n.4, but the vast majority of states do not, see Asaph Glosser et al., Statutory Rape: A Guide to State Laws and Reporting Requirements 6-7 (Dec. 15, 2004), available at https://aspe.hhs.gov/sites/default/files/pdf/75531/report.pdf (last visited Aug. 25, 2016). Binderup's conduct arguably would have been criminal in a few other states because his 17-year-old sexual partner was his employee, yet it still would have been legal in many states. Similarly, though some states punish the unlicensed carrying of a concealed weapon as a serious crime, see Gov't Suarez Br. at 16-17 n.5, more than half prescribe a maximum sentence that does not meet the threshold of a traditional felony (more than one year in prison) and others do not even require a specific credential to carry a concealed weapon, see Thomson Reuters, 50 State Survey: Right to Carry a Concealed Weapon (Statutes) (October 2015); U.S. Gov't Accountability Off., States' Laws and Requirements for Concealed Carry Permits Vary Across Nation 73-74 (2012), available at http://www.gao.gov/assets/600/592552.pdf (last visited Aug. 25, 2016); Law Ctr. to Prevent Gun Violence, Concealed Weapons Permitting, http://smartgunlaws.org/gun-laws/policy-areas/firearms-in-public-places/concealed-weapons-permitting/
In sum, the Challengers have carried their burden of showing that their misdemeanors were not serious offenses despite their maximum possible punishment.
D. Step Two of the Marzzarella Framework
Next, we consider whether § 922(g)(1) survives heightened scrutiny as applied. On this record, it does not. No doubt § 922(g)(1) is intended to further the government interest of promoting public safety by "preventing armed mayhem," Skoien, 614 F.3d at 642, an interest that is both important and compelling. But whether we apply intermediate scrutiny or strict scrutiny — and we continue to follow the lead of Marzzarella in choosing intermediate scrutiny, 614 F.3d at 97 — the Government bears the burden of proof on the appropriateness of the means it employs to further its interest. See, e.g., Bd. of Trs. of State Univ. of N.Y. v. Fox, 492 U.S. 469, 480, 109 S.Ct. 3028, 106 L.Ed.2d 388 (1989); Johnson v. California, 543 U.S. 499, 505, 506 n.1, 125 S.Ct. 1141, 160 L.Ed.2d 949 (2005).
Here the Government falls well short of satisfying its burden — even under intermediate scrutiny. The record before us consists of evidence about the Challengers' backgrounds, including the time that has passed since they last broke the law. It contains no evidence explaining why banning
The Government relies on a number of off-point statistical studies to argue that it is reasonable to disarm the Challengers because of their convictions. It notes that felons generally commit violent crimes more frequently than nonfelons, see Bureau of Justice Statistics, U.S. Dep't of Justice, Recidivism of Prisoners Released in 1994, at 6 (2002), and that the "denial of handgun purchases [to convicted felons] is associated with a reduction in risk for later criminal activity of approximately 20-30%," Mona A. Wright et al., Effectiveness of Denial of Handgun Purchase to Persons Believed to Be at High Risk for Firearm Violence, 89 Am. J. of Pub. Health 88, 89 (1999). But these studies estimate the likelihood that incarcerated felons will reoffend after their release from prison. The Challengers were not incarcerated and are not felons under state law; they are state-law misdemeanants who spent no time in jail. The Government cannot draw any reasonable conclusions about the risk posed by their possession of firearms from such obviously distinguishable studies. It claims that even criminals placed on probation rather than sent to prison have a heightened risk of recidivism, but the study it cites found that, "[g]enerally, the risk of recidivism was highest during the first year after admission to probation," and that "[a]s released prisoners and probationers age, they tend to exhibit lower rates of recidivism." Iowa Div. of Crim. & Juvenile Justice Planning, Recidivism Among Iowa Probationers 2 (July 2005), available at http://publications.iowa.gov/15032/ (last visited Aug. 25, 2016). Binderup's and Suarez's offenses are 20 and 26 years old, respectively, so that study tells us little, if anything, about the risk of recidivism in these cases.
The Government also claims to have studies of particular relevance to each Challenger's situation, but this argument too misses the mark. As to Binderup, the Government cites studies from several states that it contends would classify him as a sex offender on account of his criminal conduct. See Gov't Binderup Br. at 33-34; see also id. at 28 n.8 (citing a Pennsylvania study showing that individuals convicted of
As to Suarez, the Government emphasizes that persons arrested for "weapons offenses" are rearrested at high rates, Gov't Suarez Br. at 30 & nn.10-11 (citing studies), and relies on a study indicating that California handgun purchasers in 1977 "who had prior convictions for nonviolent firearm-related offenses such as carrying concealed firearms in public, but none for violent offenses," were more likely than people with no criminal histories to be charged later with a violent crime, see Garen J. Wintemute et al., Prior Misdemeanor Convictions as a Risk Factor for Later Violent and Firearm-Related Criminal Activity Among Authorized Purchasers of Handguns, 280 Am. Med. Ass'n 2083, 2086 (1998). Yet that study only addresses the risk of recidivism within 15 years of a conviction for an unspecified "nonviolent firearm-related offense." Id. at 2086. Common sense tells us that recidivism rates would change with the passage of an additional 11 years (Suarez was convicted 26 years ago) and vary based on the circumstances of the prior conviction.
This is not to say that empirical studies are irrelevant to as-applied Second Amendment challenges. Parties may use statistics to show that people who commit certain crimes have a high (or low) likelihood of recidivism that warrants (or does not warrant) disarmament, even decades after a conviction. In these cases, empirical studies could have demonstrated an appropriate fit between the Challengers' total disarmament and the promotion of public safety if they contained reliable statistical evidence that people with the Challengers' backgrounds were more likely to misuse firearms or were otherwise irresponsible or dangerous. The Government simply presented no such evidence.
Additionally, that federal law gives Binderup and Suarez opportunities to escape the effect of § 922(g)(1) does not save the statute from unconstitutionality under the circumstances. For starters, several avenues are closed to them altogether: they may not apply for relief under § 925(c) because that provision has been unfunded for years, see Logan, 552 U.S. at 28 n.1, 128 S.Ct. 475; and Suarez is ineligible for expungement or the restoration of his civil rights, see Md. Code, Crim. P., § 10-105; Logan, 552 U.S. at 31-32, 128 S.Ct. 475. Those avenues that remain open to them do not satisfy even intermediate scrutiny. Binderup's record may be expunged only after he reaches age 70 (or is dead for three years), 18 Pa. Cons. Stat. § 9122(b), but as there is no evidence showing it is reasonable to ban Binderup from possessing a firearm today, there is certainly no evidence to show that it is reasonable to keep that ban in place until his 70th birthday. The only remaining option
The Challengers' isolated, decades-old, non-violent misdemeanors do not permit the inference that disarming people like them will promote the responsible use of firearms. Nor is there any evidence in the record to show why people like them remain potentially irresponsible after many years of apparently responsible behavior. Without more, there is not a substantial fit between the continuing disarmament of the Challengers and an important government interest. Thus, § 922(g)(1) is unconstitutional as applied to them.
When sorting out a fractured decision of the Court, the goal is "to find a single legal standard" that "produce[s] results with which a majority of the [Court] in the case articulating the standard would agree." United States v. Donovan, 661 F.3d 174, 182 (3d Cir. 2011) (quoting Planned Parenthood of Southeastern Pa. v. Casey, 947 F.2d 682, 693 (3d Cir. 1991), modified on other grounds, 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992)). We have at times "looked to the votes of dissenting [judges] if they, combined with votes from plurality or concurring opinions, establish a majority view on the relevant issue." Id. And when no single rationale explaining the result enjoys the support of a majority of the Court, its holding "may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds." Marks v. United States, 430 U.S. 188, 193, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977) (quoting Gregg v. Georgia, 428 U.S. 153, 169 n.15, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) (plurality opinion)).
Applying those interpretive tools here, the following is the law of our Circuit: (1) the two-step Marzzarella framework controls all Second Amendment challenges, including as-applied challenges to § 922(g)(1); (2) a challenger will satisfy the first step of that framework only if he proves that the law or regulation at issue burdens conduct protected by the Second Amendment; (3) to satisfy step one in the context of an as-applied challenge to § 922(g)(1), a challenger must prove that he was not previously convicted of a serious crime; (4) evidence of a challenger's rehabilitation or his likelihood of recidivism is not relevant to the step-one analysis; (5) as the narrowest ground supporting the Court's judgments for Binderup and Suarez, the considerations discussed above will determine whether crimes are serious (i.e., disqualifying) at step one; and (6) if a challenger makes the necessary step-one showing, the burden shifts to the Government at step two to prove that the regulation at issue survives intermediate scrutiny.
In the cases before us, though Binderup and Suarez fail to show that their misdemeanor offenses are not subject to § 922(g)(1), they have rebutted the presumption that they lack Second Amendment rights by distinguishing their crimes of conviction from those that historically led to exclusion from Second Amendment
HARDIMAN, Circuit Judge, concurring in part and concurring in the judgments, joined by FISHER, CHAGARES, JORDAN, and NYGAARD, Circuit Judges.
The Second Amendment secures an individual "right of the people" to keep and bear arms unconnected to service in the militia. District of Columbia v. Heller, 554 U.S. 570, 595, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008). This "pre-existing" right was included in the Bill of Rights in light of the troubles the colonists experienced under British rule and the Founders' appreciation of the considerable power that was transferred to the new federal government. Without a specific guarantee in our fundamental charter, it was feared that "the people" might one day be disarmed. See id. at 598-99, 128 S.Ct. 2783. At the same time, the Founders understood that not everyone possessed Second Amendment rights. These appeals require us to decide who count among "the people" entitled to keep and bear arms.
The laws of the United States prohibit felons and certain misdemeanants from possessing firearms. 18 U.S.C. § 922(g)(1). Guided by the Supreme Court's characterization of felon dispossession as "presumptively lawful" in Heller, we held in United States v. Barton that this prohibition does not on its face violate the Second Amendment. 633 F.3d 168 (3d Cir. 2011). In doing so we stated that § 922(g)(1) remains subject to as-applied constitutional challenges. Id. at 172-75. These consolidated appeals present two such challenges. Daniel Binderup and Julio Suarez — each permanently barred from possessing firearms because of prior misdemeanor convictions — contend that § 922(g)(1) is unconstitutional as applied to them.
It is. The most cogent principle that can be drawn from traditional limitations on the right to keep and bear arms is that dangerous persons likely to use firearms for illicit purposes were not understood to be protected by the Second Amendment. And because Binderup and Suarez have demonstrated that their crimes of conviction were nonviolent and that their personal circumstances are distinguishable from those of persons who do not enjoy Second Amendment rights because of their demonstrated proclivity for violence, the judgments of the District Courts must be affirmed.
We agree with all our colleagues that Binderup and Suarez are subject to disarmament under the plain terms of 18 U.S.C. § 922(g)(1).
The Second Amendment provides: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." U.S. Const. amend. II. In Heller, the Supreme Court held the Second Amendment protects an individual right to possess a firearm unconnected to service in a militia, and to use that weapon for traditionally lawful purposes, such as self-defense within the home. 554 U.S. at 595, 128 S.Ct. 2783. The Second Amendment "elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home" — a right that is at the "core" of the Second Amendment. Id. at 635, 128 S.Ct. 2783 (emphasis added). Two years after Heller, in McDonald v. City of Chicago, the Court held the Fourteenth Amendment "incorporates the Second Amendment right recognized in Heller," explaining that the right is "fundamental" to "our system of ordered liberty." 561 U.S. 742, 778, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010).
Although the Second Amendment is an enumerated fundamental right, it is "not unlimited." Heller, 554 U.S. at 626, 128 S.Ct. 2783. "No fundamental right — not even the First Amendment — is absolute." McDonald, 561 U.S. at 802, 130 S.Ct. 3020 (Scalia, J., concurring). A range of "who," "what," "where," "when," and "how" restrictions relating to firearms are permitted — many based on the scope of the Second Amendment and others based on their satisfaction of some level of heightened scrutiny. See Eugene Volokh, Implementing the Right to Keep and Bear Arms for Self-Defense: An Analytical Framework and A Research Agenda, 56 UCLA L. Rev. 1443, 1443 (2009) (distinguishing between "`what' restrictions (such as bans on machine guns, so-called `assault weapons,' or unpersonalized handguns), `who' restrictions (such as bans on possession by felons, misdemeanants, noncitizens, or 18-to-20-year-olds), `where' restrictions (such as bans on carrying in public, in places that
For instance, the right is "not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose." Heller, 554 U.S. at 626, 128 S.Ct. 2783. Likewise, the Supreme Court has acknowledged the "historical tradition of prohibiting the carrying of dangerous and unusual weapons." Id. (internal quotation marks omitted). In addition, Heller catalogued a non-exhaustive list of "presumptively lawful regulatory measures" that have historically constrained the parameters of the right. Id. at 627 n.26, 128 S.Ct. 2783. These include "longstanding prohibitions on the possession of firearms by felons and the mentally ill, ... laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, [and] laws imposing conditions and qualifications on the commercial sale of arms."
The Supreme Court has not yet heard an as-applied Second Amendment challenge to a presumptively lawful ban on firearms possession. But that fact makes Heller and McDonald no less binding on our inquiry here.
Two of our decisions pertain to Binderup's and Suarez's as-applied challenges in these appeals. United States v. Marzzarella involved an as-applied challenge to a conviction under 18 U.S.C. § 922(k), which prohibits the possession of a handgun with an obliterated serial number — a "what" restriction limiting possession of a certain category of firearms. 614 F.3d at 87. Because this statute was not included in Heller's list of presumptively lawful firearm regulations, we gleaned from Heller a "two-pronged approach to Second Amendment challenges." Id. at 89. We first consider "whether the challenged law imposes a burden on conduct falling within the scope of the Second Amendment's guarantee." Id. If the conduct lies outside the Second Amendment's scope, the right does not apply and the challenged law must stand. But if the law burdens protected
Applying that test to § 922(k)'s ban on the possession of firearms with obliterated serial numbers, we held that the law "would pass constitutional muster even if it burdens protected conduct." Id. at 95. In other words, we skipped the first step and proceeded to apply means-ends scrutiny. We chose intermediate scrutiny
A year after Marzzarella we decided Barton, which involved facial and as-applied challenges to the very law in question here: § 922(g)(1). Unlike the law at issue in Marzzarella — the "what" restriction codified in § 922(k) — the statute at issue in Barton (and in these appeals) was a presumptively lawful "who" restriction that prohibits certain people from possessing guns because of their membership in a criminal class. Barton was a felon who had been convicted of possessing firearms and ammunition in violation of § 922(g)(1). Barton, 633 F.3d at 169. We readily concluded that his facial challenge "must fail" in light of Heller's list of presumptively lawful firearm regulations. Id. at 172. We reasoned that since a facial challenge requires a showing that the challenged law "is unconstitutional in all of its applications," Heller foreclosed a facial challenge to § 922(g)(1) because it is "presumptively lawful," meaning that, "under most circumstances, [it] regulate[s] conduct which is unprotected by the Second Amendment." Id.
Most relevant to these appeals is our analysis of Barton's as-applied challenge to § 922(g)(1). In that regard, we first determined that "Heller's statement regarding the presumptive validity of felon gun dispossession statutes does not foreclose" an as-applied challenge. Id. at 173. We reasoned that "[b]y describing the felon disarmament ban as presumptively lawful, the Supreme Court implied that the presumption may be rebutted."
For the reasons discussed, we concluded that "[t]o raise a successful as-applied challenge, [one] must present facts about himself and his background that distinguish his circumstances from those of persons historically barred from Second Amendment protections." Id. at 174. We explained further:
Id. (internal citation omitted).
We had no trouble concluding that Barton failed to make this showing because he could not demonstrate that he was "no more likely than the typical citizen to commit a crime of violence." Id. To begin with, his prior disqualifying convictions were for possession of cocaine with intent to distribute and for receipt of a stolen firearm. Id. As we explained, "[c]ourts have held in a number of contexts that offenses relating to drug trafficking and receiving stolen weapons are closely related to violent crime" — again, the relevant historical justification for excluding the class of which Barton was a member from the Second Amendment's protections. Id. The record also indicated that Barton had not been rehabilitated such that he was "no more dangerous than a typical law-abiding citizen." Id. Indeed, he had recently admitted to selling a firearm with an obliterated serial number to a police informant. Id. For those reasons, we rejected Barton's as-applied challenge because he had failed "to demonstrate that his circumstances place him outside the intended scope of § 922(g)(1)." Id.
Our decisions in Marzzarella and Barton show that the threshold question in a Second Amendment challenge is one of scope: whether the Second Amendment protects the person, the weapon, or the activity in the first place. This requires an inquiry into "text and history." Heller, 554 U.S. at 595, 128 S.Ct. 2783. "Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad." Id. at 634-35, 128 S.Ct. 2783. The "critical tool of constitutional interpretation" in this area is "examination of a variety of legal and other sources to determine the public understanding of a legal text in the period after its enactment or ratification." Id. at 605, 128 S.Ct. 2783 (emphasis in original); see also Ezell v. City of Chicago, 651 F.3d 684, 702 (7th Cir. 2011) ("Heller suggests that some federal gun laws will survive Second Amendment challenge because they regulate activity falling outside the scope of the right as publicly understood when the Bill of Rights was ratified; McDonald confirms that if the claim concerns a state or local law, the `scope' question asks how the right was publicly understood when the Fourteenth Amendment was proposed and ratified."). Hence, the scope of the right is discerned with reference to the "historical justifications" underlying traditional limits on the right's coverage. Heller, 554 U.S. at 635, 128 S.Ct. 2783. The test we enunciated in Barton was directed at this very question. See Barton, 633 F.3d at 173 ("[T]o evaluate [an] as-applied challenge [to § 922(g)(1)], we look to [its] historical pedigree
The fact that Barton speaks to scope does not mean, as our colleagues and the Government insist, that it requires application of means-end scrutiny once it is determined that a presumptively lawful regulation has dispossessed someone who falls within the protection of the Second Amendment. It is true that courts typically apply some form of means-end scrutiny to as-applied challenges once it has been determined that the law in question burdens protected conduct. But when, as in these appeals, it comes to an as-applied challenge to a presumptively lawful regulation that entirely bars the challenger from exercising the core Second Amendment right, any resort to means-end scrutiny is inappropriate once it has been determined that the challenger's circumstances distinguish him from the historical justifications supporting the regulation. This is because such laws are categorically invalid as applied to persons entitled to Second Amendment protection — a matter of scope.
This principle is based on Heller itself. That decision invalidated a municipal law that banned handgun possession in the home and required any lawful firearm to be kept disassembled and bound by a trigger lock at all times, rendering it inoperable.
Heller's reasoning bears this out. Specifically, with respect to the District of Columbia's requirement that all firearms in the home be "kept inoperable at all times," the Court said: "[t]his makes it impossible for citizens to use them for the core lawful purpose of self-defense and is hence unconstitutional." Id. at 630, 128 S.Ct. 2783 (emphasis added). Conspicuously absent from the Court's analysis is any mention of means-end scrutiny. Instead, the Court reasoned categorically: (1) the regulation entirely deprives protected persons from exercising the core of the Second Amendment right; (2) it's therefore unconstitutional. The same went for the District of Columbia's handgun ban. After concluding that the Second Amendment includes handguns, the Court didn't mince words: "[w]hatever the reason, handguns are the most popular weapon chosen by Americans for self-defense in the home, and a complete prohibition of their use is invalid." Id. at 629, 128 S.Ct. 2783 (emphasis added). A nineteenth century authority quoted by the Supreme Court in the paragraph preceding this conclusion should eliminate any doubt regarding the Court's categorical approach: "A statute which, under the pretence of regulating, amounts to a destruction of the right, or which requires arms to be so borne as to render them wholly useless for the purpose of defence, would be clearly unconstitutional." Id. (quoting State v. Reid, 1 Ala. 612, 616-617 (1840)) (emphases added); see also Bliss v. Com., 12 Ky. 90, 91 (1822) (suggesting that
We are not the first to recognize this categorical rule. As the Seventh Circuit has explained, "[b]oth Heller and McDonald suggest that broadly prohibitory laws restricting the core Second Amendment right — like the handgun bans at issue in those cases, which prohibited handgun possession even in the home — are categorically unconstitutional." Ezell, 651 F.3d at 703; see also Joseph Blocher, Categoricalism and Balancing in First and Second Amendment Analysis, 84 N.Y.U. L. Rev. 375, 380 (2009) ("Rather than adopting one of the First Amendment's many Frankfurter-inspired balancing approaches, the majority endorsed a categorical test under which some types of `Arms' and arms-usage are protected absolutely from bans and some types of `Arms' and people are excluded entirely from constitutional coverage."); Heller v. D.C., 670 F.3d 1244, 1272-73 (D.C. Cir. 2011) (Kavanaugh, J., dissenting) ("As to the ban on handguns[,] ... the Supreme Court in Heller never asked whether the law was narrowly tailored to serve a compelling government interest (strict scrutiny) or substantially related to an important government interest (intermediate scrutiny). If the Supreme Court had meant to adopt one of those tests, it could have said so in Heller and measured D.C.'s handgun ban against the relevant standard. But the Court did not do so; it instead determined that handguns had not traditionally been banned and were in common use — and thus that D.C.'s handgun ban was unconstitutional."); Peruta v. Cnty. of San Diego, 742 F.3d 1144, 1170 (9th Cir. 2014) ("[T]he rare law that `destroys' the [core Second Amendment] right" requires "Heller-style per se invalidation.") (O'Scannlain, J.), rev'd on reh'g en banc, 824 F.3d 919 (9th Cir.2016).
Although we suspect that most firearm regulations probably will not trigger this categorical rule, § 922(g)(1) certainly does. As applied to someone who falls within the protective scope of the Second Amendment, § 922(g)(1) goes even further than the "severe restriction" struck down in Heller: it completely eviscerates the Second Amendment right.
For the reasons stated, Barton alone provides the standard for an as-applied Second Amendment challenge to a presumptively lawful regulatory measure (like § 922(g)(1)) that denies a core Second
This does not mean, of course, that a dispossessed individual can win an as-applied challenge by promising to behave well in the future.
We agree with the District Courts that § 922(g)(1) is unconstitutional as applied to Binderup and Suarez. As far as the historical justification for felon dispossession goes, we explained it in Barton: the time-honored principle that the right to keep and bear arms does not extend to those likely to commit violent offenses. Because the Supreme Court declined to "expound upon the historical justifications" for the list of presumptively lawful firearm exclusions in Heller, 554 U.S. at 627 n.26, 635, 128 S.Ct. 2783 — leaving that task to us — Barton's rationale warrants further explication. As stated, Heller instructs that the public understanding of the scope of the right to keep and bear arms at the time of the Second Amendment's enactment dictates the scope of the right today. Id. at 605, 128 S.Ct. 2783. In undertaking this inquiry, we are reminded that "[h]istorical analysis can be difficult; it sometimes requires resolving threshold questions, and making nuanced judgments about which evidence to consult and how to interpret it." McDonald, 561 U.S. at 803-04, 130 S.Ct. 3020 (Scalia, J., concurring).
The most germane evidence available directly supports the conclusion that the founding generation did not understand the right to keep and bear arms to extend to certain categories of people deemed too dangerous to possess firearms. At the Pennsylvania ratifying convention, Constitutionalists and other opponents of the Federalists proposed language stating that "no law shall be passed for disarming the people or any of them unless for crimes committed, or real danger of public injury from individuals." The Address and Reasons of Dissent of the Minority of the Convention of Pennsylvania to their Constituents, reprinted in Bernard Schwartz, 2 The Bill of Rights: A Documentary History 662, 665 (1971) (emphasis added). Likewise, at the Massachusetts ratifying convention just months later, Samuel Adams offered a proposal that the "Constitution be never construed to authorize Congress ... to prevent the people of the United States, who are peaceable citizens, from keeping their own arms." Journal of Convention: Wednesday February 6, 1788, reprinted in Debates and Proceedings in the Convention of the Commonwealth of Massachusetts Held in the Year 1788, at 86 (Boston, William White 1856) (emphasis added). And the New Hampshire convention proposed that "Congress shall never disarm any Citizen unless such as are or have been in Actual Rebellion." Schwartz, 2 The Bill of Rights: A Documentary History at 761.
These proposals show that there was broad consensus between Federalists and their opponents on the existence and nature of the "natural right" to keep and bear arms for defensive purposes; what was controversial was whether the Constitution required a Bill of Rights to ensure the right to keep and bear arms (as so-called Anti-Federalists contended) or whether such an explicit guarantee was unnecessary in light of Congress's limited delegated powers and might in fact backfire by minimizing other, unenumerated liberties (as Federalists argued). See Stephen P. Halbrook, The Founders' Second Amendment 190-215 (surveying the debates at the ratifying conventions and highlighting the commonplace understanding that "dangerous persons could be disarmed"). Indeed, it is telling that in the crucibles of the ratifying conventions, such public declarations of the scope of the
A number of firearms restrictions from the founding and pre-founding era support this conclusion. Aside from "complete bans on gun ownership by free blacks, slaves, Native Americans, and those of mixed race" (each of which today would be plainly unconstitutional), the founding generation also disarmed those who refused to pledge their loyalty to the Revolution, state, or nation. Adam Winkler, Heller's Catch-22, 56 UCLA L. Rev. 1551, 1562 (2009). As the Fifth Circuit has explained, "[a]lthough these Loyalists were neither criminals nor traitors, American legislators had determined that permitting these persons to keep and bear arms posed a potential danger." Nat'l Rifle Ass'n of Am., Inc. v. Bureau of Alcohol, Tobacco, Firearms, & Explosives, 700 F.3d 185, 200 (5th Cir. 2012); see also United States v. Carpio-Leon, 701 F.3d 974, 980 (4th Cir. 2012) (noting that Massachusetts required participants in Shays' Rebellion to obtain a pardon for taking up arms against the state, to swear allegiance to the state, and to give up their firearms for three years). This principle had some roots in the English arms tradition, wherein the Crown had the authority "to disarm not only papists, but dangerous and disaffected persons as well." Patrick J. Charles, "Arms for Their Defence"?: An Historical, Legal, and Textual Analysis of the English Right to Have Arms and Whether the Second Amendment Should Be Incorporated in McDonald v. City of Chicago, 57 Clev. St. L. Rev. 351, 382 (2009); cf. Robert H. Churchill, Gun Regulation, the Police Power, and the Right to Keep Arms in Early America: The Legal Context of the Second Amendment, 25 L. & Hist. Rev. 139, 164 (2007) (noting that although "English law supplied ample precedent" to disarm "`dangerous' citizens," the power was rarely practiced by early American governments). In short, "from time immemorial, various jurisdictions recognizing a right to arms have ... taken the step of forbidding suspect groups from having arms," and "American legislators at the time of the Bill of Rights seem to have been aware of this tradition." Don B. Kates & Clayton E. Cramer, Second Amendment Limitations and Criminological Considerations, 60 Hastings L.J. 1339, 1360 (2009); see also Marshall, 32 Harv. J.L. & Pub. Pol'y at 711-12 (examining later laws (upheld in courts) barring possession of firearms while intoxicated and possession of firearms by "tramps" (roaming beggars) and construing them in terms of the "present danger" of misconduct presented by such persons were they to carry firearms).
Although the debates from the ratifying conventions point strongly toward a limit on Second Amendment rights centered on dangerousness, dispossessory regulations enacted to that end were few and far between in the first century of our Republic. Consequently, some have reckoned that "[t]he historical evidence" regarding the scope of the Second Amendment "is inconclusive at best." United States v. Skoien, 614 F.3d 638, 650 (7th Cir. 2010) (en banc) (Sykes, J., dissenting). We disagree. Even though "[t]he Founding generation had no laws ... denying the right [to keep and bear arms] to people convicted of crimes," Winkler, 56 UCLA L. Rev. at 1563, novelty does not mean unconstitutionality. After
Thus, a common thread running through the words and actions of the Founders gives us a distinct principle to inform our understanding of the original public meaning of the text of the Second Amendment. See, e.g., Marshall, 32 Harv. J.L. & Pub. Pol'y at 698 ("[A]ctual `longstanding' precedent in America and pre-Founding England suggests that a firearms disability can be consistent with the Second Amendment to the extent that ... its basis credibly indicates a present danger that one will misuse arms against others and the disability redresses that danger."); id. at 727-28 ("[T]o the extent that one can distill any guidance from the English disability and the Revolutionary disarmament, it would seem at most to be that persons who by their actions — not just their thoughts — betray a likelihood of violence against the state may be disarmed."); Stephen P. Halbrook, What the Framers Intended: A Linguistic Analysis of the Right to `Bear Arms', 49 Law & Contemp. Probs. 151, 161 (1986) (concluding that "violent criminals, children, and those of unsound mind may be deprived of firearms" (emphasis added)). In sum, the historical record leads us to conclude that the public understanding of the scope of the Second Amendment was tethered to the principle that the Constitution permitted the dispossession of persons who demonstrated that they would present a danger to the public if armed.
The Government's divergent reading of the historical scope of the Second Amendment — also adopted in different ways by Judges Ambro and Fuentes — is unconvincing. Relying on the republican notion of "civic virtue," the Government maintains that Binderup's and Suarez's misdemeanor convictions place them outside the class of "those members of the polity who were deemed capable of exercising [the right to keep and bear arms] in a virtuous manner." Gov't Suarez Br. 14 (quoting Saul Cornell, "Don't Know Much about History": The Current Crisis in Second Amendment Scholarship, 29 N. Ky. L. Rev. 657, 679 (2002)). To be sure, "[s]ome scholarship suggests that at the time of the nation's founding, the right to bear arms was not understood to extend to those convicted of a felony, either because they were not believed to be among `the people' whose right to bear arms was protected, or because they lacked the requisite `virtue' necessary for firearm possession." Alexander C. Barrett, Note, Taking Aim at Felony Possession, 93 B.U. L. Rev. 163, 194-95 & n.197 (2013) (citing Don B. Kates, Jr., The Second Amendment: A Dialogue, 49 L. & Contemp. Probs. 143, 146 (1986) (offering that the right to keep and bear arms was tied to the idea of the "virtuous citizen," such that "the right to arms does not preclude laws disarming the unvirtuous (i.e., criminals) or those who, like children or the mentally unbalanced, are deemed incapable of virtue")); see also Don B. Kates, Jr. & Clayton E. Cramer, Second Amendment Limitations and Criminological Considerations, 60 Hastings L.J.
This "virtue" standard — especially in the pliable version articulated by the Government — is implausible because the "civic republican" view of the scope of the Second Amendment is wrong. Although courts, scholars, and litigants have cited this supposed limitation,
Moreover, this supposed limitation on the Second Amendment stems from a misreading of an academic debate about "ideological interpretation," Cornell & DeDino, 73 Fordham L. Rev. at 528 n.29, the gist of which concerns the extent to which the Founders were civic republicans or libertarians
This literature does not help us identify the types of people who were not entitled to exercise Second Amendment rights.
Furthermore, it is hard to understand what the Government's proposed "virtuousness" limitation would even require. The Government has offered no guidance in this regard, except to urge that we defer to legislative judgments about what sorts of offenses or characteristics render one insufficiently "virtuous" to enjoy a fundamental right. The Dissent and to a lesser extent Judge Ambro have accepted this approach. The legislative judgments set forth in the margin are but a few illustrations of its deep flaws.
Even if we were to attempt to apply the notion of civic virtue to felon dispossession, it is doubtful the Government would prevail. Although felons at common law "were essentially stripped of property and other rights," the term "felony" "applied only to a few very serious, very dangerous offenses such as murder, rape, arson, and robbery" — in other words, crimes closely associated with violence. Kates & Cramer, 60 Hastings L.J. at 1362. But see Marshall, 32 Harv. J.L. & Pub. Pol'y at 715-16 (casting doubt on the claim that a felony conviction necessarily entailed permanent dispossession). Indeed, one of the scholars cited by the Government concludes that insofar as a statute "would seek to bar arms possession by" persons who have been convicted of a nonviolent "felony" in the modern sense, "those laws would seem to be invalid." Kates & Cramer, 60 Hastings L.J. at 1363. See Barrett, 93 B.U. L. Rev. at 196 ("[E]ven if some felons were historically understood to be barred from possessing firearms, the common law term `felony' applied to only a few select categories of serious crimes at the time the Second Amendment was ratified, while in modern times, vast categories of `non-dangerous' activities qualify as felonious."); Marshall, 32 Harv. J.L. & Pub. Pol'y at 729-30 (explaining that the first federal felony dispossession laws applied only to a core group of crimes including "murder, manslaughter, rape, mayhem, aggravated assault ... robbery, burglary, housebreaking, and attempt to commit any of these crimes"). And at least one of our sister courts faced with the virtuousness argument treated "virtue" as basically synonymous with "non-dangerous." See United States v. Rene E., 583 F.3d 8, 16 (1st Cir. 2009) ("To be sure, there is an ongoing debate among historians about the extent to which the right to bear arms in the founding period turned on concerns about the possessor's `virtue,' i.e., on a legislative judgment that possession of firearms by a certain class of individuals would pose a serious danger to the public." (emphasis added)). Accordingly, we reject the Government's suggestion that Second Amendment protections are limited "to those members of the polity who were deemed capable of exercising [the right to keep and bear arms] in a virtuous manner." Gov't Suarez Br. 14.
All this means that Binderup and Suarez must distinguish themselves and their circumstances from those of persons not entitled to keep and bear arms because of their propensity for violence. And as the District Courts found, both men did so. Specifically, each is a misdemeanant convicted of a non-violent crime who has shown "that he is no more dangerous than a typical law-abiding citizen." See Barton, 633 F.3d at 174. While we agree with the Government that the felony-misdemeanor distinction is "minor and often arbitrary," especially since "numerous misdemeanors involve conduct more dangerous than many felonies," Gov't Binderup Br. 19 and Gov't Suarez Br. 18 (quoting Tennessee v. Garner, 471 U.S. 1, 14, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985)), that is beside the point here. Our focus must remain on the legitimate (i.e., traditional) concern that justifies the dispossession of certain offenders: we cannot trust them not to commit violent crimes with firearms. The Government concedes that "the Supreme Court might
For purposes of the traditional justifications animating § 922(g)(1), both Binderup's corruption of minors offense and Suarez's licensing violation were nonviolent misdemeanors. In Barton, we described the violent crimes of the sort that motivated felon dispossession since 1938 in the following way: "For nearly a quarter century, § 922(g)(1) had a narrower basis for a disability, limited to those convicted of a `crime of violence.' `Crimes of violence' were commonly understood to include only those offenses `ordinarily committed with the aid of firearms.'" Barton, 633 F.3d at 173 (quoting Marshall, 32 Harv. J.L. & Pub. Pol'y at 698, 702 (2009)) (some internal quotation marks omitted); see also United States v. Chovan, 735 F.3d 1127, 1137 (9th Cir. 2013) (noting that the "Federal Firearms Act of 1938 only restricted firearm possession for those individuals convicted of a `crime of violence,' defined as `murder, manslaughter, rape, mayhem, kidnapping, burglary, housebreaking, and certain forms of aggravated assault — assault with intent to kill, commit rape, or rob; assault with a dangerous weapon, or assault with intent to commit any offense punishable by imprisonment for more than one year'"). Dispossession on the basis of a conviction for these sorts of crimes comports with the original public understanding of the scope of the right to keep and bear arms.
Neither Binderup's improper relationship with an employee capable of consent nor Suarez's possession of a handgun that he could have possessed lawfully had he acquired a license meets this description. Nor did their offenses involve any actual violent behavior. It is true that a small handful of States would classify Binderup's offense as statutory rape
Binderup, 2014 WL 4764424, at *22. Nor is there any "record evidence [that] supports a reasonable inference that he has a propensity to commit violent acts, sexual or otherwise." Id. at *23. In a real stretch, the Government likens Binderup's conduct to that which was felonized by a 1576 English statute that forbade "carnal
The nonviolent nature of Suarez's offense is evident as well. The Government's unremarkable observation that Maryland's licensing requirement relates to public safety does not make Suarez's offense a violent crime. It neither involved the actual use or threatened use of force, nor was it "closely related to violent crime" in the way that drug trafficking and receiving stolen weapons are. See Barton, 633 F.3d at 174. Heller characterized the Second Amendment as guaranteeing "the right of law-abiding, responsible citizens to use arms in defense of hearth and home." 554 U.S. at 635, 128 S.Ct. 2783 (emphasis added). The Government relies on the Fourth Circuit's decision in United States v. Pruess to argue that Suarez's violation of a lawful, well-established firearm regulation demonstrates that he is not a responsible, law-abiding citizen. That reliance is misplaced.
In Pruess, the Fourth Circuit rejected an as-applied challenge to § 922(g)(1) by a felon whose disqualifying convictions related to his prior sales of illegal arms, concluding that Pruess could not "rebut the presumption of lawfulness of the felon-in-possession prohibition as applied to him." 703 F.3d 242, 246 (4th Cir. 2012). Although Pruess, like Suarez, had committed regulatory violations, his circumstances were dissimilar from Suarez's in every other way. For example, Pruess had committed "repeated violations of the firearms laws, leading to at least twenty prior convictions," and admitted that although he "did not intend to use them for violence himself... he believed that [certain] weapons and ammunition underlying his convictions were stolen." Id. His repeated dealings in stolen, illegal weapons — such as fully automatic AK-47's and grenades — appropriately led the court to conclude that Pruess had committed acts "closely related to violent crime" and "flunk[ed] the `law-abiding responsible citizen' requirement." Id. at 244, 246. Suarez, by comparison, committed a nonviolent firearms licensing offense with respect to an otherwise lawful weapon decades ago, the circumstances of which were unassociated with violence.
In addition to showing that neither their offenses nor the circumstances surrounding them involved any violence or threat of violence, Binderup and Suarez have also demonstrated that their subsequent behavior confirms their membership among the class of responsible, law-abiding citizens to whom Second Amendment protection extends. As the District Courts found, both
The Government has presented no evidence that either Binderup or Suarez has been, or would be, dangerous, violent, or irresponsible with firearms.
The Government cites a number of recidivism studies as a final justification for permanently disarming Binderup and Suarez. It notes that felons commit violent crimes more frequently than nonfelons. See Bureau of Justice Statistics, U.S. Dep't of Justice, Recidivism of Prisoners Released in 1994 at 6 (2002) (finding that, within a population of 234,358 federal inmates released in 1994, the rates of arrest for homicides were 53 times the national average). Relatedly, it highlights a 1994 study finding that approximately one in five offenders imprisoned for nonviolent crimes were rearrested for violent offenses within three years of their release. See Bureau of Justice Statistics Fact Sheet, Profile of Nonviolent Offenders Exiting State Prisons, tbl.11 (Oct. 2004), available at http://bjs.gov/content/pub/pdf/pnoesp.pdf. The Government's second piece of evidence is a study comparing denials of handgun purchases to convicted felons with successful purchases by persons arrested but not convicted of a felony. The study found that the "denial of handgun purchases is associated with a reduction in risk for later criminal activity of approximately 20% to 30%." Mona A. Wright et al., Effectiveness of Denial of Handgun Purchase to Persons Believed to Be at High Risk for Firearm Violence, 89 Am. J. of Pub. Health 88, 89 (1999).
Finally, with respect to Binderup, it notes that "[s]ex offenders" (which Binderup is not) "present a high risk of recidivism." Gov't Binderup Br. 28 (citing Pennsylvania Dep't of Corrections, Recidivism Report, 21 tbl. 12 (Feb. 8, 2013), available at http://www.nationalcia.org/wp-content/uploads/2013-PA-DOC-Recidivism-Report.pdf) (finding that 50 percent of persons convicted of statutory rape and 60.2 percent of those convicted of "[o]ther [s]exual [o]ffenses" were rearrested or reincarcerated within three years of release from Pennsylvania prison) and U.S. Dep't of Justice, Office of Justice Programs, Bureau of Justice Statistics Special Report: Recidivism of Prisoners Released in 1994, 8 tbls.9, 15, available at http://www.bjs.gov/content/pub/pdf/rpr94.pdf (finding a 41.4 percent rearrest rate among persons convicted for "other sexual assault"). And with respect to Suarez, the Government emphasizes that persons arrested for "weapons offenses" are rearrested at high rates within a few years. Gov't Br. 30 & nn. 10-11 (citing studies). In addition, it relies upon a study indicating that California handgun purchasers in 1977 "who had prior convictions for nonviolent firearm-related offenses such as carrying concealed firearms in public, but none for violent
The Government presents this evidence in its argument that § 922(g)(1) satisfies intermediate scrutiny as applied to Binderup and Suarez.
Even if the Government's generalized studies are recast as addressing the issue of scope,
Finally, the Government's sex-offender recidivism evidence paints with too broad a brush. Binderup's misdemeanor was not classified as a sexual offense and did not trigger a duty to register as a sex offender. Compare 18 Pa. Const. Stat. Ann. § 6301(a)(1)(I), with 18 Pa. Const. Stat. Ann. § 3103-3144. The report does not appear to cover corruption-of-minors recidivists and lumps Binderup together with an amalgam of persons guilty of a broad range of unspecified sexual offenses. See U.S. Dep't of Justice, Office of Justice Programs, Bureau of Justice Statistics Special Report: Recidivism of Prisoners Released in 1994, 8 tbls.9, 15. The same goes for the dated firearm-offense recidivism study the Government invokes against Suarez, which covers a wide, unspecified range of "nonviolent firearm-related offenses." Wintemute, 280 Am. Med. Ass'n at 2086. Common sense dictates that violent recidivism rates are different for drug dealers carrying unlicensed firearms to protect their turf and ordinary citizens carrying unlicensed firearms for self-defense (behavior that several states do not even criminalize). See GAO, States' Laws and Requirements for Concealed Carry Permits Vary Across Nation 8-9 (2012), available at http://www.gao.gov/assets/600/592552.pdf (last visited Sept. 3, 2016).
Without more, the Government's studies don't support the application of § 922(g)(1) to Binderup and Suarez. Given the uncontroverted evidence they have presented distinguishing themselves from persons who are not entitled to keep and bear arms, the Government needs to offer more than regression analyses of recidivism (largely by felons who, unlike Binderup and Suarez, were incarcerated). An as-applied challenge ultimately rests on the question of whether "application [of a statute] to a particular person under particular circumstances deprive[s] that person of a constitutional right." Marcavage, 609 F.3d at 273 (emphases added). Binderup and Suarez have presented unrebutted evidence that their offenses were nonviolent and now decades old, and that they present no threat to society, which places them within the class persons who have a right to keep and bear arms. Accordingly, 18 U.S.C. § 922(g)(1) is unconstitutional as applied to them.
* * *
In the years since the Supreme Court's decision in Heller, courts have had to
FUENTES, Circuit Judge, concurring in part, dissenting in part, and dissenting from the judgments, with whom McKEE, Chief Judge, and VANASKIE, SHWARTZ, KRAUSE, RESTREPO, and ROTH, Circuit Judges, join.
The plaintiffs ask us to do something that no federal appellate court has done before: to hold that, even though they were both convicted of crimes punishable by multiple years in prison, Congress may not constitutionally prevent them from owning firearms. They ask us to do this notwithstanding a long tradition in this country of preventing criminals from owning guns, and despite the fact that the felon-in-possession statute, 18 U.S.C. § 922(g)(1), has been in force for over half a century.
Judges Ambro and Hardiman believe that the Second Amendment requires us to sustain the plaintiffs' challenges, although they arrive at that conclusion along different routes and would shape our Second Amendment doctrine in divergent ways. By contrast, I would hold that the plaintiffs' as-applied challenges to § 922(g)(1) must fail. The Second Amendment, important as it may be, does not prevent Congress from deciding that convicted criminals should not have access to firearms. We as a society require persons convicted of crimes to forfeit any number of rights and privileges, including the right to sit on a jury, the right to hold elective office, and the right to vote.
What's more, even if we were to apply intermediate scrutiny to test the validity of § 922(g)(1), I would conclude that the statute is reasonably tailored to promote the substantial government interest of suppressing armed violence. Congress itself previously created and then defunded an administrative regime for providing individualized exceptions to the felon-in-possession ban.
I therefore concur with Judge Ambro's opinion in part, dissent from it in part, and dissent from the majority's decision to affirm the judgments of the District Courts.
I. The Current State of the Law Regarding Challenges to § 922(g)(1)
No federal appellate court has yet upheld a challenge, facial or as-applied, to the felon-in-possession statute. It may therefore be helpful to begin by summarizing the Supreme Court's limited guidance on this issue and to explore how our sister circuits have applied that guidance in the context of § 922(g)(1).
A. The Meaning of
The Second Amendment provides: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."
In a footnote, the Court described these laws collectively as "presumptively lawful regulatory measures," making clear that "[the] list does not purport to be exhaustive."
Two interpretive questions about Heller therefore arise again and again. First, what does it mean to say that the felon-in-possession ban is "presumptively lawful"? Second, what does it mean to say that a person may only possess a firearm if he or she has not been "disqualified from the exercise of Second Amendment rights"? As we shall see, our sister circuits have already done yeoman's work exploring these questions and suggesting possible answers.
B. Four Circuits Have Rejected As-Applied Challenges Altogether
Four circuits — the Fifth, Ninth, Tenth, and Eleventh — have concluded that as-applied challenges to § 922(g)(1) are not permissible, at least with respect to felons.
We begin with the Fifth Circuit, which held years before Heller that the Second Amendment protects an individual right to bear arms.
The Ninth Circuit addressed the issue of as-applied challenges in United States v. Vongxay.
A recent Ninth Circuit decision, United States v. Phillips,
The Tenth Circuit rejected a constitutional challenge to § 922(g)(1) in United States v. McCane.
Lastly, the Eleventh Circuit upheld the constitutionality of § 922(g)(1) in United States v. Rozier.
C. Three Circuits Are Wary of As-Applied Challenges
The First Circuit has expressed skepticism about as-applied challenges to the federal firearms laws, although it has not foreclosed such challenges. In United States v. Torres-Rosario,
The Second Circuit upheld the constitutionality of § 922(g)(1) in United States v. Bogle.
Meanwhile, the jurisprudence of the Sixth Circuit appears to be in flux. That court dealt with challenges to § 922(g)(1) in two non-precedential opinions. In one, United States v. Frazier,
D. Four Circuits Permit As-Applied Challenges
In many instances, these courts have also narrowed the universe of as-applied challenges that are permissible. The Fourth Circuit, which has repeatedly said that it might affirm an as-applied challenge in the right circumstances, has rejected the proposition that Congress may disarm only persons who commit violent
There is also some ambiguity in the jurisprudence of the Eighth Circuit. That court upheld the facial constitutionality of § 922(g)(1) in United States v. Seay.
Even so, another Eighth Circuit decision, United States v. Bena,
Meanwhile, the D.C. Circuit considered the issue of as-applied challenges in Schrader v. Holder.
* * *
As this survey of cases demonstrates, federal judges face an almost complete absence of guidance from the Supreme Court about the scope of the Second Amendment right. Even so, only four of our sister courts have clearly stated that as-applied challenges to § 922(g)(1) are even permissible. In taking the further step of upholding such a challenge, we stand entirely alone.
With this background in mind, it is possible to explain where I agree — and disagree — with my colleagues.
Marzzarella Step-One and Exclusions from the Second Amendment Right
Our decision in Marzzarella establishes a two-step test for assessing challenges to the constitutionality of statutes under the Second Amendment:
I agree with Judge Ambro that Marzzarella provides the correct framework for assessing challenges to the constitutionality of § 922(g)(1). I also agree with him that, at Marzzarella step-one, persons who commit serious crimes are disqualified from asserting their Second Amendment rights.
Unfortunately, Judge Ambro and I disagree over how to decide whether any particular crime is serious enough to cause a loss of firearm rights. Judge Ambro
A. Congress May Permissibly Disarm Felons at
In applying step-one of the Marzzarella analysis, we ask whether § 922(g)(1) burdens any Second Amendment right. At least as to the prohibition on felons possessing firearms, Heller and Marzzarella answer that question directly.
The Heller Court was careful to tell us that "nothing in [its] opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons."
At the time Marzzarella came down, this reading of Heller was in accord with the views of several of our sister courts.
With respect to the Founding generation, the Eighth Circuit points us to Blackstone, who "explained that English subjects enjoyed a right to have arms for their defense, `suitable to their condition and degree' and `under due restrictions.'"
The Seventh Circuit has also done helpful work mining the historical sources. Sitting en banc, the court highlighted the fact that, during the Founding era, "[m]any of the states, whose own constitutions entitled their citizens to be armed, did not extend this right to persons convicted of crime."
The federal statutory ban on convicts possessing firearms itself has a lengthy pedigree. In 1932, Congress passed a law imposing restrictions on the possession of machine guns, sawed-off shotguns, and certain other weapons in the District of Columbia.
The development of § 922(g) also evinces Congress's desire to keep guns away from persons other than those whose past unlawful conduct indicates a likelihood of future dangerousness. The current iteration of § 922(g) prohibits nine groups of persons from possessing guns, including fugitives, drug addicts, persons previously committed to mental institutions, persons under a court order for threatening a partner or child, and persons with misdemeanor convictions for crimes of domestic violence. The other prohibitions of § 922(g), however, rest on a slightly different rationale. In 1968, Congress expanded what is now § 922(g) to cover undocumented or non-immigrant aliens, persons dishonorably discharged from the military, and persons who have renounced their U.S. citizenship. These additions, which were "enacted in response to the wave of political and civil rights assassinations during the 1960s,"
To be fair, one might quibble with this kind of historical explanation for § 922(g)(1)'s scope. With regard to the statute itself, one might ask if 50 years is a long enough period of time to entrench a constitutional tradition — although several courts have said as much when assessing Second Amendment challenges.
Even so, my review of the relevant history leads me to conclude that § 922(g)(1)'s categorical ban on felons possessing firearms is rooted deeply enough in our tradition to operate as a bona fide disqualification from the Second Amendment right.
B. Misdemeanors Within § 922(g)(1)'s Scope Are Functionally Felonies
Having established that felons are categorically disqualified from asserting their Second Amendment rights, the next question is whether misdemeanants, like the plaintiffs, are situated differently. The plaintiffs insist that they are. In their view, "[w]hen Heller spoke of `felons,' it spoke of a traditional common-law classification known to the Framers, not a late-twentieth century statute including some vast (if disputed) number of misdemeanor offenses."
As an initial matter, nothing in Heller suggests that the felony-misdemeanor distinction is a meaningful one. It is true, of course, that Heller's list of "presumptively lawful regulatory measures" includes "longstanding prohibitions on the possession of firearms by felons."
More fundamentally, the notion that there is a sharp distinction between felonies and misdemeanors, at least within the universe of crimes covered by § 922(g)(1), is not correct. Our own Court has long recognized that, in the modern world, a "felony" is any crime punishable by at least one year and one day in prison.
Indeed, we have previously held that Congress has the power to define a "felony" for purposes of federal law in ways that depart even from the year-and-a-day rule. In United States v. Graham,
Graham recognized that "[t]he line between felonies and misdemeanors is an ancient one," but it also noted that, "[w]ith the rise of the penitentiary and the disappearance of the death penalty for most felonies ... the felony-misdemeanor distinction solidified at the one-year line."
Contrary to the statutory scheme we confronted in Graham, § 922(g)(1) respects the more modern, year-and-a-day distinction between felonies and misdemeanors. Indeed, it does more than respect it: it actually excludes from its scope misdemeanors that are punishable by two years of imprisonment or less. In this way, § 922(g)(1) incorporates certain state-law judgments about what crimes count as "serious" misdemeanors. In other contexts, the Supreme Court has affirmed the value of easily administrable statutory schemes by stating that Congress can adopt clear, uniform rules about what counts as a "felony" for purposes of federal law, even where state-level definitions are more nuanced.
The bottom line is this: once a misdemeanor is punishable by more than two years in prison, treating it as though it were intrinsically different than a felony is unjustifiably formalistic. By choosing to punish such misdemeanors more severely than a traditional felony, a state has already indicated that such crimes are serious. In my view, Congress is entitled to rely on that judgment.
Accordingly, my resolution of this case would be simple. Heller tells us that "nothing in [that] opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons."
C. A Note on
Heller 's Use of the Word "Presumptively"
A majority of my colleagues disagree with the proposition that the felon-in-possession ban is a constitutional carve-out from the Second Amendment right. In affirming the plaintiffs' challenges, they make it clear that district courts in our Circuit must now conduct person-by-person, individualized inquiries in order to determine whether the application of § 922(g)(1) is constitutional in any particular case.
In reaching that conclusion, my colleagues treat Heller's use of the word "presumptively" as though it requires courts to consider as-applied challenges to the felon-in-possession ban. Judge Hardiman, for example, cites the Seventh Circuit's decision in United States v. Williams, which read Heller's reference "to felon disarmament bans only as `presumptively lawful'" to imply "the possibility that the ban could be unconstitutional in the face of an as-applied challenge."
This reading of "presumptively" in Heller puts more weight on that word than it can fairly bear. It is important to keep in mind the context within which the word appears. The key text of Heller says:
Footnote 26 of Heller, which accompanies this passage, states: "We identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive."
Judge Ambro and Judge Hardiman read the word "presumptively" as though the Supreme Court was communicating, through its use of a single adverb in a footnote, a mandate that the Second Amendment now requires courts to hear as-applied challenges to certain laws that limit gun rights. That interpretation strikes me as exactly backwards. The Supreme Court was not putting us on notice that "longstanding prohibitions" universally considered constitutional pre-Heller were, post-Heller, constitutionally suspect. The Court was instead trying to provide assurances that, whatever else Heller might portend, it did not provide a basis
It is also important to underscore that not all of the "longstanding prohibitions" on Heller's list are the same. The ban on "the possession of firearms by felons"
The latter two kinds of "longstanding prohibitions" are different. These categories — "laws forbidding the carrying of firearms in sensitive places" and "laws imposing conditions and qualifications on the commercial sale of arms"
And here we come back to the word "presumptively." In a case involving "laws forbidding the carrying of firearms in sensitive places" or "laws imposing conditions and qualifications on the commercial sale of arms,"
Consequently, I disagree with Judge Ambro's view that courts must "determin[e] whether crimes are serious enough to destroy Second Amendment rights" on a case-by-case basis.
Marzzarella Step-Two and the Proper Application of Constitutional Scrutiny
Even if, out of an abundance of caution, we were to move on to step two of the Marzzarella analysis and apply heightened scrutiny — a step I do not believe is necessary — Congress's interests in preventing gun violence are sufficiently important, and the felon-in-possession statute sufficiently tailored, that § 922(g)(1) would survive the plaintiffs' challenges.
My colleagues disagree. Judge Hardiman believes that § 922(g)(1) is so destructive of Second Amendment rights that, at least as applied to non-violent criminals, it is per se unconstitutional. Judge Ambro, meanwhile, insists that we must apply constitutional scrutiny at the level of people like the plaintiffs, and that if the government cannot show that "disarming people like them will promote the responsible use of firearms," or that people "like them remain potentially irresponsible after many years of apparently responsible behavior,"
A. Intermediate Scrutiny Is the Appropriate Standard for These Cases
In Marzzarella, we opted to apply intermediate rather than strict scrutiny to test the constitutionality of a federal statute. Looking to First Amendment jurisprudence for guidance, we asked whether (i) the challenged law involved a government interest that was either "significant," "substantial," or "important," and (ii) whether "the fit between the challenged regulation and the asserted objective [was] reasonable, not perfect."
In choosing to apply intermediate scrutiny, Marzzarella discerned an important distinction in Heller. While Heller clearly rejected rational-basis review,
Marzzarella thus drew a distinction between laws that burden the "core ... right of law-abiding citizens to possess [certain] weapons for self-defense in the home," on the one hand, and laws that "do not severely limit the possession of firearms,"
We reaffirmed this framework in Drake v. Filko,
Just as intermediate scrutiny was the correct standard to apply in Marzzarella and Drake, it is also the correct standard to apply here. The felon-in-possession ban, to the extent it burdens Second Amendment rights at all, does not impinge on the rights of "law-abiding, responsible citizens."
Several of our sister circuits have assessed challenges to other provisions of § 922(g) using this same approach. In United States v. Carter,
Thus, even assuming that Binderup and Suarez fall within the Second Amendment's protections, I would join our sister circuits in holding that their prior criminal convictions place them outside the core "right of law-abiding, responsible citizens to use arms in defense of hearth and home."
B. Judge Hardiman's Rejection of Heightened Scrutiny
Before proceeding any further, I think it is important to pause in order to address a profound doctrinal disagreement between myself and Judge Hardiman. Like Judge Ambro and me, Judge Hardiman believes
Having concluded that Congress may permissibly disarm persons likely to commit violent acts, Judge Hardiman then defends the proposition that all other applications of § 922(g)(1) are per se unconstitutional. No recourse to heightened scrutiny or means-ends balancing is necessary. After all, Heller struck down a local ordinance that completely prevented citizens from possessing firearms in their homes for self-defense. Section 922(g)(1) has the same effect with respect to felons and certain misdemeanants. So, Judge Hardiman concludes, § 922(g)(1) must be unconstitutional in every application to non-violent criminals because it "eviscerates" their Second Amendment rights.
In addition, the rejection of heightened scrutiny in this context seems out-of-step with Heller itself. As discussed earlier, Heller says that the "core" Second Amendment right is the "right of law-abiding, responsible citizens to use arms in defense of hearth and home."
The advantage of heightened scrutiny is that it allows us to think about how Congress (and, by corollary, we as a polity) can tackle real-world challenges within constitutional boundaries. Such an inquiry necessarily requires us to think about the connection between means and ends, and therefore to debate the seriousness of the problems we face — including gun violence — and the permissible means of addressing them. While history is of course important, and in many cases will be dispositive, the tiers of scrutiny provide us with a useful analytical framework for assessing the constitutionality of laws that burden Second Amendment rights — even those, like § 922(g)(1), that disarm certain persons altogether.
C. The Felon-in-Possession Ban Survives Intermediate Scrutiny
Applying intermediate scrutiny, we ask whether the challenged law involves a government interest that is "significant," "substantial," or "important," and then assess whether "the fit between the challenged regulation and the asserted objective [was] reasonable, not perfect."
Courts have identified Congress's objective in passing § 922(g) as "keep[ing] guns out of the hands of presumptively risky people" and "suppressing armed violence."
Our Court has also said that governments "undoubtedly [have] a significant, substantial and important interest in protecting [their] citizens' safety."
Having established that the government's objective is a substantial one, we next ask if the challenged law is a "reasonable fit" to carry out the government's purposes. In making that assessment, the "State bears the burden of justifying its restrictions [and] it must affirmatively establish the reasonable fit we require."
Several courts have — correctly, in my view — refused to parse the government's evidence as finely as the plaintiffs ask us to.
Against this backdrop, I conclude that the government's evidence adequately establishes a connection between past criminal conduct and future gun violence. I also conclude that Congress's decision to disarm felons and those who commit misdemeanors punishable by more than two years in prison is reasonably tailored to preventing such violence.
D. Tailoring § 922(g)(1) Too Narrowly Is Problematic
The foregoing analysis, of course, speaks to the issue of tailoring with respect to the connection between the risk of gun violence and the universe of offenses that trigger § 922(g)(1) (i.e., felonies and misdemeanors punishable by more than two years in prison). The plaintiffs believe that the statute must be tailored more narrowly still — indeed, so narrowly that it takes account of their individual characteristics.
And here we come to the difficult conceptual issue in this case: is this sort of as-applied challenge to § 922(g)(1) even permissible? This issue has divided the Courts of Appeals, caused endless trouble for the government at oral argument, and has at times perplexed me as well. But I ultimately conclude that the answer must be "no."
But Second Amendment limitations like the felon-in-possession ban and the ban on mentally-ill persons possessing guns are different — and the reason they're different is because, in this context, the government's objective is neither logistical nor abstract. It is, quite simply, to prevent armed mayhem and death.
And this is why as-applied challenges to § 922(g)(1) are so problematic. Binderup and Suarez are, in effect, saying, "Trust us: we are not the kind of people who will cause future gun violence." The problem is that it is practically impossible to make this kind of individualized prediction with any degree of confidence. Mistakes — costly ones — are simply too likely.
That is not my judgment, but rather the judgment of Congress itself. A separate provision of the federal gun laws, 18 U.S.C. § 925(c), states that "[a] person who is prohibited from possessing, shipping, transporting, or receiving firearms or ammunition may make application to the Attorney General for relief from the disabilities imposed by Federal laws." The Attorney General may "grant such relief if it is established to his satisfaction that the circumstances regarding the disability, and the applicant's record and reputation, are such that the applicant will not be likely to act in a manner dangerous to public safety and that the granting of the relief would not be contrary to the public interest."
In other words, Congress reviewed the evidence from its prior regime of what were, in effect, as-applied challenges to § 922(g)(1) and concluded that such a system was unworkable. This should have a profound impact on our tailoring analysis. Under intermediate scrutiny, we ask whether there is a "reasonable" fit between the challenged regulation and the government's objective.
Notwithstanding Congress's experience with § 925(c), the plaintiffs seem to believe that by shoehorning their complaints about § 922(g)(1)'s scope into the rubric of "as-applied challenges," they necessarily force us to assess their individual characteristics rather than rely on Congress's categorical rule. I disagree. Even in the First Amendment context, where courts routinely assess as-applied challenges to speech-limiting laws, there are circumstances where such challenges must fail in the face of reasonable deference to legislative judgments.
The Supreme Court's decision in United Public Workers of America (C.I.O.) v. Mitchell
The Supreme Court rejected that argument. In its view, the Hatch Act survived constitutional scrutiny because the conduct it outlawed was "reasonably deemed by Congress to interfere with the efficiency of the public service."
The logic of Mitchell applies with equal force to the present case. Here, too, Congress has passed a law to respond to a public danger. Here, too, individualized predictions are impossible with any degree of accuracy. Here, too, a regime of person-by-person regulation would present grave problems of administrability. But here, unlike in Mitchell, the potential harm is not only serious and widespread, but also deadly.
Mitchell instructs us that Congress has the power in such circumstances to impose a complete ban on the exercise of a constitutional right by a category of persons who, in its reasonable estimation, pose a threat to the public. While courts must, of course, entertain constitutional challenges to statutes that infringe on constitutional rights, Mitchell makes it clear that there are some laws with respect to which as-applied challenges will categorically fail. I believe that § 922(g)(1) is such a law.
Moreover, insofar as the plaintiffs' claims sound in overbreadth, it is worth
First, we should remember that § 922(g)(1) is a statute predicated on principles of federalism. Rather than specifying a list of qualifying offenses, "[i]t looks to state law" and imposes "restrictions on certain convicts based on decisions made by state legislatures and courts."
At this point, one might reasonably object that, by refusing to permit as-applied challenges to § 922(g)(1), we give legislatures far too much power to disarm citizens. After all, what prevents a state from passing a law saying that jaywalking is punishable by five years in prison? Or a speeding ticket? Or littering? "Surely," one might think, "Congress cannot disarm people who commit those offenses?"
I understand and appreciate these concerns. But institutional considerations lead me to conclude that Congress may permissibly use the existence of a prior criminal conviction as a trigger for collateral consequences under federal law. This necessarily means that states have near total control over what offenses will trigger those federal consequences. If the citizens of a particular state believe that a criminal offense is too minor to trigger disarmament, their remedy is to petition the state legislature to amend the law — not to seek redress in the federal courts. Indeed, there is evidence that state authorities are perfectly capable of assessing the consequences of § 922(g) and acting to counter them if they feel that doing so is appropriate.
To put it another way, § 922(g) reflects a congressional policy judgment that states should have a role in determining what kinds of misdemeanor offenses will trigger disarmament. That is a question over which the states will predictably disagree. The Supreme Court itself recognized as much in Logan v. United States.
Second, federal law lifts the felon-in-possession ban whenever a conviction "has been expunged, or set aside," or is one "for which a person has been pardoned or has had civil rights restored."
Third, there is the right to petition Congress itself. With respect to § 925(c), some members of Congress have announced their support for appropriating the funds necessary for the Justice Department to once again consider applications for relief from the felon-in-possession ban.
There is also the possibility of obtaining offense-specific carve-outs from § 922(g)(1). For example, another provision of the federal gun laws says that the term "crime punishable by imprisonment for a term exceeding one year" in § 922(g)(1) "does not include ... any Federal or State offenses pertaining to antitrust violations, unfair trade practices, restraints of trade, or other similar offenses relating to the regulation of business practices."
Accordingly, I believe that § 922(g)(1) is a reasonable fit to carry out the government's purpose of reducing armed violence. Congress has made a reasoned judgment that persons who commit felonies and misdemeanors punishable by more than two years in prison are likelier to commit future gun violence than law-abiding citizens. That judgment is informed by Congress's experience with § 925(c), which it concluded was unworkable and dangerous because, in its view, that law did not provide a way for the government to make accurate judgments about the safety of re-arming particular people.
I would therefore uphold § 922(g)(1) under intermediate scrutiny, both as applied to these plaintiffs and as applied to future plaintiffs who might bring similar challenges.
IV. The Problems with As-Applied Challenges to § 922(g)(1) Are Insurmountable
Finally, it is important to step back and take stock of what the plaintiffs are actually asking us to do, which is to create an entirely new judicial process for resolving as-applied challenges to § 922(g)(1). Such an approach is both doctrinally unnecessary and administratively unworkable.
The current rule for determining whether § 922(g)(1) applies is about as straightforward as it gets: "the fact of a felony conviction imposes a firearm disability until the conviction is vacated or the felon is relieved of his disability by some affirmative action."
This becomes apparent once we consider how a regime of as-applied challenges would function in the real world. We previously examined this issue in Pontarelli v. United States Department of the Treasury.
Pontarelli rejected that argument. Sitting en banc, we concluded that Congress's denial of funds to process § 925(c) applications stripped the federal district courts of jurisdiction to review the Justice Department's refusal to act on those applications. We also expressed skepticism that courts were capable of making individualized determinations about whether any particular felon should have his or her firearm rights restored. We stated that "[d]istrict courts' institutional limitations suggest that Congress could not have intended for the appropriations ban to transfer to them the primary responsibility for determining
The Supreme Court later unanimously vindicated Pontarelli in United States v. Bean.
Pontarelli and Bean recognized the many pitfalls inherent in a regime of as-applied challenges. We should embrace the wisdom of those opinions now.
Indeed, the great advantage of § 922(g)(1) is that its application turns on a prior adjudication. There is a real risk that by instead peering into the seriousness of a plaintiff's prior conviction, we are inviting what are, in effect, collateral attacks on long-closed proceedings. The Tenth Circuit recognized as much in United States v. Reese.
First, our decision today places an extraordinary administrative burden on district courts handling criminal prosecutions under § 922(g)(1). Once as-applied challenges start to work their way through our courts, there will be an increasingly large body of "re-armament orders" that restore individuals' firearm rights. As a consequence, there will be more and more people who believe that they can rely on a particular judicial decision to claim that they, too, are entitled to possess a firearm. District court judges will find themselves in an ever-thickening morass of as-applied precedent, trying to make fine-grained distinctions about whether individual felon-in-possession prosecutions can proceed. Given that my colleagues leave the door open to as-applied challenges even with respect to persons who have committed felonies, we can expect these challenges to begin working their way through our Circuit almost immediately.
Still worse, my colleagues' approaches appear to be on a collision course with the Due Process Clause of the Fifth Amendment, which prohibits the government from "taking away someone's life, liberty, or property under a criminal law so vague that it fails to give ordinary people fair notice of the conduct it punishes, or so standardless that it invites arbitrary enforcement."
Keep in mind that both Judge Ambro and Judge Hardiman are open to the possibility that a person convicted of a crime might, over time, be able to present evidence of rehabilitation sufficient to mount a successful as-applied challenge to the felon-in-possession ban.
In response to this evident quagmire, one might propose a series of bright-line rules for determining when application of § 922(g)(1) is constitutional. Unfortunately, my colleagues do not offer such rules. Under their more holistic standards, the constitutionality of the felon-in-possession statute in any particular case may depend on the judge's views about the offense and offender. As a result, defendants may not have fair notice of when and against whom the statute will be — or constitutionally can be — enforced.
The federal judiciary's recent experience with the Armed Career Criminal Act makes it plain that our new regime of as-applied challenges may be heading towards a doctrinal dead-end. The Act increases the penalties on violations of § 922(g) whenever a defendant has three or more earlier convictions for a "serious drug offense" or a "violent felony."
I take Johnson to stand for the proposition that the category of "violent felony" is simply too indefinite to use as a basis for determining who is and is not subject to criminal liability under § 922(g)(1). Judge Hardiman, by contrast, would permit plaintiffs to bring as-applied challenges on the ground that their previous crimes were not sufficiently violent to support disarmament. This raises the question of how violent, exactly, a crime has to be for application of § 922(g)(1) to be constitutional. Citing Barton, Judge Hardiman focuses on offenses "closely related to violent crime,"
Unfortunately, Judge Ambro's approach raises its own set of problems. He would require district court judges to consider a variety of factors in order to assess a crime's "seriousness," including, among other things, (i) whether a crime is a misdemeanor or a felony,
I see nothing in the Second Amendment that compels us to abandon the current system of administrable firearms regulation for such an uncertain future.
It is easy to empathize with the plaintiffs in these cases. Having committed misdemeanors far in the past, they fail to see how they can fairly be denied a right guaranteed to them by the Constitution. Heller says that the "core" Second Amendment right is the "right of law-abiding, responsible citizens to use arms in defense of hearth and home."
As understandable as that intuition may be, our emerging law of the Second Amendment does not permit this kind of as-applied challenge. First, Heller establishes a clear rule: statutes like § 922(g)(1) are "longstanding prohibitions" that are "presumptively lawful."
The plaintiffs' suggestion that we should get into the business of issuing individualized exceptions to the felon-in-possession ban is, in the final analysis, administratively unworkable and constitutionally suspect. By affirming the plaintiffs' challenges today, I fear my colleagues are sending our nascent law of the Second Amendment into a doctrinal Labyrinth from which it may not soon return.
I therefore respectfully dissent.
Volokh, 56 UCLA L. Rev. at 1443.
And our determination in Barton that § 922(g)(1) is subject to as-applied challenges is by no means an outlier. Several of our sister courts have either accepted or allowed the possibility of as-applied Second Amendment challenges to presumptively lawful regulations. See, e.g., United States v. Williams, 616 F.3d 685, 692 (7th Cir. 2010) ("Heller referred to felon disarmament bans only as `presumptively lawful,' which, by implication, means that there must exist the possibility that the ban could be unconstitutional in the face of an as-applied challenge."); United States v. Carpio-Leon, 701 F.3d 974, 981 (4th Cir. 2012) ("The Heller Court's holding that defines the core right to bear arms by law-abiding, responsible citizens does not preclude some future determination that persons who commit some offenses might nonetheless remain in the protected class of `law-abiding, responsible' persons."); Schrader v. Holder, 704 F.3d 980, 991 (D.C. Cir. 2013) (indicating willingness to consider an as-applied Second Amendment challenge to § 922(g)(1) but concluding it had not been raised properly).
Although the Dissent rests its conclusion on its determination that all persons covered by § 922(g)(1) fall outside the scope of the Second Amendment, it too expresses doubt as to the availability of as-applied constitutional challenges to this "presumptively lawful" statute. See Dissent at 388 (stating that Marzzarella "concluded that the `better reading' of Heller was that [the list of presumptively lawful] measures were complete `exceptions to the right to bear arms'") (quoting Marzzarella, 614 F.3d at 91 and adding emphasis). Marzzarella held no such thing (indeed, it did not even involve a challenge to one of the presumptively lawful longstanding regulations identified by Heller). Rather, its examination of Heller's list was geared toward determining whether such regulations were "presumptively lawful" based on the step-one question (the scope of the Second Amendment) or the step-two question (means-end scrutiny). Its conclusion that the former is the correct understanding of Heller meant that "these longstanding limitations are exceptions to the right to bear arms." Marzzarella, 614 F.3d at 91. Barton's characterization mirrored Marzzarella's: it stated that a "lawful" longstanding regulation "regulates conduct `fall[ing outside] the scope of the Second Amendment's guarantee.'" Barton, 633 F.3d at 172 (quoting Marzzarella, 614 F.3d at 91). But neither Marzzarella nor any other of our precedents has ever implied that Heller's incomplete list of "presumptively lawful" firearm regulations "`under any and all circumstances do not offend the Second Amendment.'" Dissent at 384 (quoting United States v. Rozier, 598 F.3d 768, 771 (11th Cir. 2010) and adding emphasis). To so hold would ignore the meaning of the word "presumption." A presumption of constitutionality "is a presumption... [about] the existence of factual conditions supporting the legislation. As such it is a rebuttable presumption." Borden's Farm Products Co. v. Baldwin, 293 U.S. 194, 209, 55 S.Ct. 187, 79 L.Ed. 281 (1934) (emphasis added). We do not disagree that the Heller Court included this "presumptively lawful" language to provide some "assurance" that its decision "did not provide a basis for future litigants to upend any and all restrictions on the right to bear arms." Dissent at 394-95. Indeed, we have concluded that § 922(g)(1) is facially valid for this very reason. See Barton, 633 F.3d at 172. But we doubt the Supreme Court couched its first definitive characterization of the nature of the Second Amendment right so as to completely immunize this statute from any constitutional challenge whatsoever. Put simply, we take the Supreme Court at its word that felon dispossession is "presumptively lawful." Heller, 554 U.S. at 627 n.26, 128 S.Ct. 2783 (emphasis added).
Indeed, Heller itself shows the "precondition" characterization of § 922(g)(1) to be unavailing. The handgun ban and disassembly ordinance struck down in that case likewise had exceptions that could be abstractly framed as "conditions precedent" to exercise of the Second Amendment right: the handgun ban was subject to an exception that the Chief of Police could issue one-year handgun licenses at his discretion and the disassembly ordinance allowed residents to keep lawful firearms in the home so long as they were rendered inoperable. See Heller, 554 U.S. at 574-75, 128 S.Ct. 2783. But the Supreme Court did not understand the licensing exception as a condition precedent to handgun possession or the disassembly rule as a mere precondition on keeping firearms in the home; it viewed these carve-outs as "minor exceptions" and struck down both ordinances as unconstitutional destructions of the Second Amendment right. Id. at 575 n.1, 629-30, 128 S.Ct. 2783. The Dissent's retort that Heller is distinguishable because there the "core `right of law-abiding, responsible citizens to use arms in defense of hearth and home'" was implicated and here it is not because Binderup and Suarez's misdemeanors place them outside of that class puts the rabbit in the hat. Dissent at 397-98 (quoting Heller, 554 U.S. at 635, 128 S.Ct. 2783). If Binderup's and Suarez's offenses are not of the type that were historically understood to remove them from the class of persons entitled to Second Amendment rights, § 922(g)(1) effects the same type of untenable "conditions" that were deemed unconstitutional in Heller.
Nor do limits on jury service or eligibility for public office offer any insight into the scope of the Second Amendment, not least because they are not fundamental rights. See Carter v. Jury Comm'n of Greene Cnty., 396 U.S. 320, 332, 90 S.Ct. 518, 24 L.Ed.2d 549 (1970) ("The States remain free to confine the selection to citizens, to persons meeting specified qualifications of age and educational attainment, and to those possessing good intelligence, sound judgment, and fair character."); James M. Binnall, Sixteen Million Angry Men: Reviving A Dead Doctrine to Challenge the Constitutionality of Excluding Felons from Jury Service, 17 Va. J. Soc. Pol'y & L. 1, 3 (2009) ("The Supreme Court does not recognize the right to sit on a jury as fundamental."); Lindsay v. Bowen, 750 F.3d 1061, 1064 (9th Cir. 2014) (noting that there is no "fundamental right to run for public office"); U.S. Const. art. I, § 2, cl. 1; U.S. Const. amend. X.
These defeasible civil rights cannot be invoked to justify disarming Binderup and Suarez. They are different rights, with different histories and scopes, subject to different constitutional analyses.
Yancey relies on a 19th century treatise by Thomas M. Cooley for the proposition that the Constitution "protect[s] rights for `the People' excluding, among others, `the idiot, the lunatic, and the felon.'" 621 F.3d at 685 (citing Cooley, A Treatise on Constitutional Limitations 29 (Boston, Little Brown & Co. 1868)). But this interpretation of Cooley's Treatise has been thoroughly debunked (and, indeed, already had been prior to Yancey's publication). See Marshall, 32 Harv. J.L. & Pub. Pol'y at 709-10 ("The ... discussion in Cooley [cited for felon dispossession] ... concerns classes excluded from voting. These included women and the property-less — both being citizens and protected by arms rights. When Cooley does address the right to keep and bear arms, one finds this: `[H]ow far it may be in the power of the legislature to regulate the right we shall not undertake to say. Happily there neither has been, nor, we may hope, is likely to be, much occasion for the examination of that question by the courts.'") (quoting Cooley, Treatise at 499 (Victor H. Lane ed., 7th ed. 1903)).
The Government's theory is all the more questionable when analogized to other constitutional rights, such as the First Amendment's free-speech guarantee. Like limitations on the scope of the Second Amendment, the unprotected status of obscenity, fighting words, and the like is rooted in our history. See R.A.V. v. City of St. Paul, Minn., 505 U.S. 377, 383, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992). These free-speech exceptions mean that while Congress can sharply restrict speech that amounts to obscenity or fighting words as traditionally understood, it may not substantially redefine what counts as obscenity or fighting words in order to reach otherwise protected expression. See, e.g., Speiser v. Randall, 357 U.S. 513, 525, 78 S.Ct. 1332, 2 L.Ed.2d 1460 (1958) ("[T]he line between speech unconditionally guaranteed and speech which may legitimately be regulated, suppressed, or punished is finely drawn."); Cantwell v. Connecticut, 310 U.S. 296, 304, 60 S.Ct. 900, 84 L.Ed. 1213 (1940) ("[T]he power to regulate must be so exercised as not, in attaining a permissible end, unduly to infringe the protected freedom."); Gooding v. Wilson, 405 U.S. 518, 521-25, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972) (statute that state claimed would only reach "fighting words" was unconstitutionally overbroad where its terms criminalized expression that a listener would find merely offensive or insulting). For instance, it would be plainly unconstitutional for a legislature to redefine "obscenity" in order to capture expression that would otherwise escape the traditional scope of obscenity as defined by the Supreme Court. See Janicki v. Pizza, 722 F.2d 1274, 1276 (6th Cir. 1983); Ashcroft v. Free Speech Coal., 535 U.S. 234, 256, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002). In other words, the historical scope of the First Amendment — not Congress — determines the parameters of the right.
The import of this analogy for the Second Amendment is straightforward: although certain types of criminals are excluded from the right to keep and bear arms, this traditional limitation on the scope of the right may not be expanded by legislative fiat. To hold otherwise would treat the Second Amendment "as a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees." McDonald, 561 U.S. at 780, 130 S.Ct. 3020 (plurality opinion). The historical record indicates that the right to keep and bear arms was publicly understood at the time of the Constitution's enactment to secure a broadly held natural right that did not extend to violent criminals. To redefine the type of "criminal" that would qualify for dispossession via a malleable "virtuousness" standard in order to capture former nonviolent misdemeanants who are in all other respects indistinguishable from normal, law-abiding citizens would be akin to redefining "fighting words" to encompass run-of-the-mill "trash talk." The Constitution takes each of these temptations "off the table." Heller, 554 U.S. at 636, 128 S.Ct. 2783.
Under 18 U.S.C. § 921(a)(20), "[t]he term `crime punishable by imprisonment for a term exceeding one year' does not include ... any State offense classified by the laws of the State as a misdemeanor and punishable by a term of imprisonment of two years or less." We therefore refer to § 922(g)(1) as the "felon-in-possession" ban. Courts commonly use this shorthand even though the statute itself does not use the term "felon," and even though it includes within its scope certain individuals who committed offenses labeled as "misdemeanors." See, e.g., Logan v. United States, 552 U.S. 23, 27, 128 S.Ct. 475, 169 L.Ed.2d 432 (2007).
In other words, the only persons subject to § 922(g)(1) are (i) felons and (ii) misdemeanants whose crimes are punishable by more than two years in prison. I therefore join Parts I and II of Judge Ambro's opinion.
Chief Judge McKee, Judge Shwartz, and Judge Restrepo join only Parts I and II of Judge Ambro's opinion. (See Ambro Op. Typescript at 6-7 n.1.)
Because Voisine did not involve a challenge to the constitutionality of § 922(g)(9), it bears on these cases only indirectly. Still, Voisine recognized that Congress passed § 922(g)(9) "to close [a] dangerous loophole in the gun control laws." Id. at 2276 (alteration in original) (internal quotation marks omitted). In particular, Congress enacted § 922(g)(9) to address the fact that "many perpetrators of domestic violence are charged with misdemeanors rather than felonies, notwithstanding the harmfulness of their conduct." Id. Congress believed that closing this loophole was important because, in the Supreme Court's words, "[f]irearms and domestic strife are a potentially deadly combination." Id. (alteration in original) (quoting United States v. Hayes, 555 U.S. 415, 427, 129 S.Ct. 1079, 172 L.Ed.2d 816 (2009)).
By contrast, there are no tools readily at-hand for deciding whether an individual person should have access to a firearm despite a past criminal conviction. See also infra at pages 406-07 (discussing previous cases that have recognized the inherent difficulties in making such determinations).